Bench Memos

NRO’s home for judicial news and analysis.

Media Distortions of Roberts’s Executive-Branch Record—Part IV


Let’s take a further look at this hit job in today’s Washington Post by reporters R. Jeffrey Smith, Amy Goldstein and Jo Becker.

The opening sentence of the article asserts that Roberts was part of a conservative civil-rights vanguard that was “advocating new legal theories and helping enforce the Reagan administration’s effort to curtail the use of courts to remedy racial and sexual discrimination.” (Emphasis added.) This sentence assumes the very issue in dispute: whether the mere existence of disparate results establishes “discrimination” that calls for a governmental “remedy”. Those who advocate racial quotas say (or assume) it does. Those like Roberts and Martin Luther King Jr. who embrace, in Roberts’s words from the time, the “bedrock principle of treating people on the basis of merit without regard to race” believe otherwise. Neither this principle nor the other main “legal theor[y]” embraced by Roberts and company—that the courts and the administration should enforce the laws as written and not impose their own policies—was, in 1981, new, though they both had been widely disregarded by the Carter administration (and are still obviously in disfavor on the Left).

I have already addressed the Post article’s mistaken charge that the Reagan administration sought to narrow, rather than preserve, the reach of the Voting Rights Act of 1965. Similar distortions abound.

For example, in support of its claim that Roberts tried “to limit the use” of the sex-discrimination provisions of Title IX, the article asserts that “Title IX had been interpreted to mean that all of a school’s funding could be cut off if it discriminated at all.” But Title IX in fact stated only that funding could be terminated “to the particular program, or part thereof, in which … noncompliance has been … found.” And, although the Carter administration sought to eviscerate this limiting language, in May 1982 a Supreme Court opinion (in North Haven Board of Education v. Bell) written by Justice Blackmun and joined by (among others) Justices Brennan and Marshall stated that “an agency’s authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of” of Title IX. Four months later, Roberts soundly relied on this Supreme Court opinion in explaining why the United States should not appeal a case involving the University of Richmond’s athletic program, which did not receive federal funds. Yet the Post reporters quote a Title IX activist’s false claim that this case was “revolutionary.”

The Post’s account of Roberts’s recommendation that the United States not intervene in a sex-discrimination case against the Kentucky prison system is equally shoddy. The article neglects to mention Roberts’s first two reasons for not intervening—(1) private plaintiffs were already bringing suit and there was no showing that the federal government’s involvement was needed, and (2) the case involved an expansive equal-protection theory and judicial interference with state prisons. On the third ground—the prospect that equal treatment could mean “no programs for anyone”—the article quotes a left-wing activist who complains that Roberts “basically implies that it would be too expensive to ensure equal treatment for women prisoners” and lets “financial interest … trump equality.” But Roberts’s point is obviously not that he thinks that it might be too expensive but that the state of Kentucky might well so conclude—in which case a litigation victory would be pyrrhic.

I am still awaiting documents that bear on some of the other assertions in the Post’s article. So please don’t assume that the fact that I haven’t addressed something in that article means that it’s accurate.


Subscribe to National Review