We’ll have a series of entries in the next few days and weeks on interesting things we find as we review the six (and counting) boxes of documents from John Roberts’s early years in the Reagan Administration that have so far been released. This is a great deal for you—you get all the fascinating tidbits, and none of the paper cuts!
Some news reports, like this CNN story, have described Judge Roberts as showing “respect” for “sticking to precedent.” However, as the Washington Post pointed out today, some of the documents that have been released call this into question.
First, there’s the matter of sex discrimination in violation of the Constitution’s Equal Protection clause. In 1981 and 1982, Roberts wrote memos setting forth his view that “gender [is not] a suspect criteria calling for heightened judicial review,” and that “extension of heightened scrutiny [beyond racial classifications] . . . represents an unjustified intrusion into legislative affairs.” The problem with this is that the Supreme Court had adopted a “heightened scrutiny” standard for discrimination based on gender in 1976 – that is, it had ruled that a law or government policy that makes distinctions based on gender will be ruled unconstitutional unless it is substantially related to important governmental objectives. Roberts was urging the Department of Justice to take a view of the Constitution that the Supreme Court had already rejected—hardly a display of great respect for Supreme Court precedents.
Second, there’s Roberts’s explicit dismissal of a Supreme Court precedent on affirmative action. In a December 2, 1981 memo from Roberts to the then Attorney General, Roberts wrote about the Department of Justice’s policy on affirmative action, which was, as Roberts puts it, that “the Constitution and Title VII require color-blindness and sex-blindness in employment decisions.” Roberts wrote that Department of Labor’s regulations on affirmative action, which required federal contractors who were underutilizing minorities and women to set goals to increase the diversity of their workforces, violated this policy, and recommended that the Attorney General urge the Department of Labor to change its regulations.
It is disturbing enough that Roberts seemed to want to eliminate all forms of affirmative action. But what is worse is the response he gave to the argument that the Justice Department’s view of the law was contrary to a Supreme Court precedent, United Steelworkers of America v. Weber. Weber was a 1979 case in which the Supreme Court held that affirmative action programs aimed at eliminating remaining patterns of racial segregation were legal. Roberts made the point that Weber “did not consider government pressure, but only a private program,” but then went on:
It [Weber] also has only four supporters on the current Supreme Court. We have difficulties with its reasoning, and do not accept it as the guiding principle in this area.
In other words, Roberts advised the Attorney General that a Supreme Court precedent, only two years old at the time, could be ignored simply because he didn’t like its conclusions and because the membership on the Supreme Court had changed.
This is a breathtaking argument. As every first-year law student knows, our legal system is built on the principle of “stare decisis,” which is Latin for “to stand by things decided.” This means that a court does not reconsider every legal question anew in each case, or each time the court’s membership changes—instead, courts rely on their past precedents, and in particular the Supreme Court’s past decisions, to say what the law is.
Of course, it’s possible that these memos doesn’t accurately reflect Roberts’s current view of precedent. Since the best way to find out is to ask him, this is one more thing that the Senate will need to question Roberts about carefully before it votes on his nomination.
