(This is the fourth in a series of posts highlighting interesting things we find as we review the publicly-available documents from John Roberts’s early years in the Reagan Administration. The first post, “Does Roberts really respect precedent?,” is here; the second one, “John Roberts on fair pay for women,” is here; and the third one, “News reports say Roberts influenced Justice Department civil rights positions,” is here.
Judge Roberts has described himself as a fan of judicial “restraint,” and this sounds like a generally good idea—who doesn’t prefer their courts restrained as opposed to, say, out of control?
However, a document from Roberts’s years working for the Reagan Justice Department suggests that one thing Roberts really means by “judicial restraint” is that courts should not strike down laws that discriminate against women or those that impinge on the right to privacy.
You don’t have to take our word for it—read for yourself. In November 1981, Roberts, then a special assistant to Attorney General William French Smith, wrote a document called “Draft Article on Judicial Restraint.” In it, Roberts explained that the Department of Justice was “undertaking a conscious effort to encourage judicial restraint,” and that this effort would affect all of its activities, including its litigation efforts and its recommendations about the “selection and appointment of federal judges.”
One part of the “judicial restraint” program, headlined by the phrase “avoid testing the constitutionality of laws by those devices which permit ready intrusion into the domain of the legislature,” meant that courts should not recognize a right to privacy (which encompasses a woman’s right to an abortion):
[One] means by which courts arrogate to themselves functions reserved to the legislative branch or the state is through so-called “fundamental rights” and “suspect class analyses . . . All of us, for example, may heartily endorse a “right to privacy.” That does not, however, mean that the courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label “fundamental,” and then resort to it as, in the words of one of Justice Blacks’ dissents, “a lose, flexible, uncontrolled standard for holding laws unconstitutional.” Griswold v. Connecticut.
There, Roberts was quoting the dissenting opinion in the 1965 case holding that it was a violation of the constitutional right to privacy for Connecticut to make it illegal for married couples to use contraception. It was opposition to this decades-old, widely-accepted holding in Griswold that helped scuttle the nomination of Robert Bork to the Supreme Court in 1987.
The “judicial restraint” plan also meant that courts should rarely if ever strike down laws that discriminated on the basis of sex, according to Roberts:
Extension of heightened scrutiny to other “insular and discrete” groups [other than racial minorities] . . . represents an unjustified intrusion into legislative affairs.
This argument, as we noted earlier, was contrary to the law at the time it was written—the Supreme Court had already held that discrimination on the basis of gender warranted “heightened scrutiny.” Roberts’s argument would mean that most laws that explicitly treated women differently than men would pass constitutional muster, even if there were no important reason for the difference in treatment.
In short, Roberts wrote that courts should reverse course on decades of progress related to women’s rights and civil rights, all in the name of “judicial restraint.” We’re adding one more thing that Roberts needs to explain in his hearing in September.