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Roberts sought to shift course of civil rights law

In the early 1980s, a young intellectual lawyer named John G. Roberts Jr. was part of the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration's effort to curtail the use of courts to remedy racial and sexual discrimination.
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In the early 1980s, a young intellectual lawyer named John G. Roberts Jr. was part of the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration's effort to curtail the use of courts to remedy racial and sexual discrimination.

Just 26 when he joined the Justice Department as a special assistant to Attorney General William French Smith, Roberts was almost immediately entrusted to counsel senior department officials on such incendiary matters of the day as school desegregation, voting rules and government antidotes to bias in housing and hiring.

In prolific missives of a few pages and densely-written 30-page legal memos, Roberts -- whose co-workers recall had primary responsibility for civil rights matters in his office — consistently sought to bolster the legal reasoning for the administration's new stances and to burnish its presentation of the policies to Congress and the public.

Roberts's record is being closely scrutinized and Democrats on the Senate Judiciary Committee say they will rigorously question the Supreme Court nominee on his views of civil rights. A review of Roberts's papers from his time at the Justice Department and interviews with his contemporaries show he was deeply involved with the Reagan administration's efforts to recast the way government and the courts approached civil rights.

He wrote vigorous defenses, for example, of the administration's version of a voting rights bill, opposed by Congress, which would have narrowed the reach of the 1965 Voting Rights Act. He challenged the U.S. Commission on Civil Rights's arguments in favor of busing and affirmation action. He described a Supreme Court decision broadening the rights of individuals to sue states for civil rights violations as causing "damage" to administration policies, and he urged that legislation be drafted to reverse it. And he wrote a memo arguing that it was constitutionally acceptable for Congress to strip the Supreme Court of its ability to hear broad classes of civil rights cases.

For young conservatives such as Roberts, many of whom had spent the years of the Carter presidency in elite schools or cooling their political heels, the first two years of Reagan's presidency were a heady period. Civil rights was an issue of enormous importance to the Republican Party's fortunes and to businesses and local or state governments frustrated by what they regarded as decades of judicial intrusion into their activities.

Justice was "the most intellectual, the most thoughtful and certainly one of the most conservative agencies" at that time, said Terry Eastland, who arrived at the department as Smith's speechwriter a few months after Roberts departed and now publishes the conservative magazine, the Weekly Standard.

‘Reverse course’
Colleagues say Roberts, then a recent Harvard Law School graduate and clerk to Supreme Court Justice William H. Rehnquist, was an ideologically close fit with the other special assistants to Smith and his top appointees. The special assistants were mostly white males in their twenties who ate lunch almost daily with Smith in his private dining room and then worked late into the night to advance the administration's views.

"We were there to reverse course from the policies of the Carter administration, certainly," said Charles J. Cooper, who worked closely with Roberts while serving as a special assistant and later as deputy to the assistant attorney general for civil rights. "Everybody was there with similar goals and intentions."

Within the group, Roberts "certainly wasn't a shrinking violet; he made known what he thought," Cooper added. Others with strong voices included Assistant Attorney General for Civil Rights William Bradford Reynolds, special assistant Carolyn Kuhl, Deputy Assistant Attorney General for Civil Rights J. Harvie Wilkinson III, Deputy Assistant Attorney General Richard Willard, special counsel Tex Lezar, and counselor to the attorney general Kenneth W. Starr, Roberts's immediate boss. Some would long play prominent roles in Washington and conservative ideology.

Catherine L. Anderson, a White House fellow who arrived as a special assistant to Smith in late summer 1982 and is now a state district court judge in Minneapolis, recalls that Roberts and the others in the office "were very dedicated to the president's agenda and the things he had set out in the campaign as his ambitions." The group was, in the words of Bruce Fein, then an associate deputy attorney general, "a band of ideological brothers" determined to make a lasting stamp on the nation.

Many, like Roberts, had attended premier law schools, surrounded by liberal students and professors. Now, they were side by side with people who shared their own views. They read and discussed books such as Plato's "Republic," the Federalist Papers, and Adam Smith's "The Wealth of Nations" and contemplated "how to leave a legacy that goes beyond passing this bill or that," said Fein.

These policies provoked substantial controversy when applied to civil rights. A nonpartisan group that included some government attorneys, the Washington Council of Lawyers, said in a September 1982 report that the Justice Department had "retreated from well-established . . . policies," disregarded principles embraced by the courts and Congress, and created new legal precedents that impeded minority rights in employment, housing, voting, and education.

But Roberts denied in memos written at the time that what he called the "critics" were correct about the administration's lax enforcement, and he also complained bitterly in a statement drafted for Smith about the "disingenuous accusations of those who, for political reasons, seek to cloud rational discussion with false charges of racism."

A generation later, it is difficult to discern the extent to which Roberts, a federal judge for just two years, still holds these views and to determine how he might exercise them if the Senate next month confirms his nomination. Much of the work he and like-minded colleagues carried out during the early Reagan era has echoes in the few papers released so far from Roberts's files in his later job as associate counsel at the Reagan White House.

Fein said Roberts had deeply-held convictions during his tenure at the Justice Department, and "these aren't principles that evaporate or walk away."

Rein in bias remedies
In August, 1981, less than a month after Roberts started working at Justice, he wrote a memo for the attorney general about a meeting that the chairman of the U.S. Commission on Civil Rights, Arthur S. Flemming, had requested to discuss what Roberts called "the purported need for race-conscious remedies such as busing and affirmative action."

In the memo, Roberts derided a report Flemming had passed along from his own staff, laying out the commission's reasons for favoring such strategies. Roberts wrote that the report "is subject to serious criticism" and advised the attorney general: "If a meeting is held with Mr. Flemming, a strong response to his view of civil rights enforcement could be made."

Flemming was dismissed by Reagan in 1982 and replaced by Clarence Pendleton, whom Roberts praised in a July 7 memo to Smith that year, noting that he "generally agrees with our anti-busing and anti-quota principles."

Later in 1981, Roberts stepped in after low-ranking attorneys in the Justice Department's civil rights division advised two school systems near Atlanta to offer jobs and back pay not only to those who had been turned down for work because of discriminatory policies but also to those who could show they were deterred from applying for jobs at the schools because of bias.

When word of this advice reached Roberts, he fired off a three-page note to Reynolds and Cooper, stating that the division's demand did not faithfully reflect the law. "A strong argument can be made that back pay for non-applicants should not be sought," Roberts said. He called such a requirement "staggering" and noted that "even such an extreme liberal" jurist as Judge James L. Oakes of the U.S. Court of Appeals for the 2nd Circuit had not approved of such penalties.

Cooper said he does not recall details of the dispute but says the memo is consistent with Roberts's overall view at the time "that there had been excesses in the civil rights remedial approaches of the prior administration." Other memos by Roberts similarly argued for reining in the federal government's role in civil rights disputes. They indicate, for example, that he was at the center of articulating and defending the administration's policy that the Voting Rights Act -- a seminal law passed in 1965 and up for renewal in 1982 -- should in the future bar only voting rules that discriminate intentionally, rather than those that were shown to have a discriminatory effect.

After the House rejected administration concerns and passed a bill embracing the more sweeping "effects" standard in October 1981 by a vote of 389 to 24, Roberts wrote in a memo to Smith, "my own view is that something must be done to educate the Senators on the seriousness of this problem." He argued in a memo to Starr that the House bill made sense only if "our laws were concerned with achieving equal results rather than equal opportunity."

The Senate eventually backed the House version after then-Sen. Robert Dole (R-Kan.) added a brief passage stating that the revisions were not intended to mandate "proportional representation" by minorities -- a viewpoint that backers of the House bill had insisted was already clear. It is not apparent from the disclosures so far what position Roberts took on that amendment, which Reagan said he supported after Dole introduced it.

Limit scope of Title IX
Roberts's writings also show that he favored another pillar of the administration's new civil rights policies in education: an effort to limit the use of Title IX of the Education Amendments of 1972, which allows the government to withhold federal aid from schools that discriminate against women. Until then, Title IX had been interpreted to mean that all of a school's funding could be cut off if it discriminated at all, but Reagan officials rewrote the rules so that only the specific program found guilty of discrimination would lose money -- an interpretation that Congress later overruled.

His second summer working for the attorney general, Roberts wrote Smith a memo on this topic, urging that the administration stand behind a lower court decision siding with the University of Richmond in a case brought by the U.S. Department of Education for alleged sex discrimination in its sports programs.

"I strongly agree with [the] recommendation not to appeal" the court's decision that the university did not have to turn over athletic records to the government because its intercollegiate sports received no federal aid, Roberts wrote. "Under Title IX, federal investigators cannot rummage willy-nilly through institutions, but can only go as far as the federal funds go."

Marcia D. Greenberger, co-president of the liberal National Women's Law Center who has been litigating Title IX cases since the 1970s, said although the Richmond case had the specific effect of shielding intercollegiate sports from civil rights enforcement, it also had broad ripple effects on other discrimination cases -- of which, she said, Roberts doubtless was aware. "It was revolutionary to the way all of these civil rights statutes operated," she said.

The following year, Roberts argued against intervening in a sex discrimination case involving alleged disparities between training programs available to male and female prisoners in Kentucky. "If equal treatment is required, the end result in this time of tight state prison budgets may be no programs for anyone," he wrote.

"He basically implies that it would be too expensive to ensure equal treatment for women prisoners," said Debra Ness, president of the advocacy group Partnership for Women & Families. "The idea that financial interest would trump equality -- that's the same kind of thinking that reinforced a system of entrenched discrimination over decades."

‘A radical proposal’
Roberts's 27-page memo in 1982 arguing that Congress had the power to strip the Supreme Court or the lower federal courts of jurisdiction over desegregation and other types of cases was prepared at the request of Starr and did not "purport to be an objective review of the issue," it said.

"Those who opposed busing were looking for ways to rein the courts in, and the most direct way was to have Congress strip the court of the ability to hear cases," said Wade Henderson, the executive director of the Leadership Conference on Civil Rights. "It was a radical proposal that even some of the most conservative members of the administration" -- such as then-Assistant Attorney General for the Office of Legal Counsel Theodore B. Olson -- questioned.

"I remember talking to John about that," Fein said. "I said if the purpose of a stripping measure was to deny the Supreme Court the definitive word in interpreting a constitutional issue that I thought that would be unconstitutional. He was much more open to the prospect." The administration eventually decided in favor of Olson, whom Fein said the "band of brothers" considered ideologically suspect because he was not consistently conservative enough.

The Post's news research staff contributed to this article.