The Democrats on the Senate Judiciary Committee have requested all documents relating to the role that John Roberts played in 16 cases before the Supreme Court during his tenure as deputy solicitor general from 1989-93. The Bush administration has–quite properly–refused to turn over such documents, on the grounds that they are privileged and that doing so would chill future discussions among government litigators. Solicitors general from earlier Democratic administrations had seconded this stance in a similar circumstance involving appeals-court nominee Miguel Estrada not long ago.
In any event, if the senators walked across the street to the Supreme Court library and did a little research, they might conclude that they are very unlikely to find any damning material in the requested documents. They would find that Roberts was not even listed on the solicitor general’s brief in 3 of the 16, which indicates that he is unlikely to have played much of a role. These three cases were all controversial (two environmental cases, one on abortion), so it was probably assumed–or hoped–that Roberts was involved, but apparently he was not.
Of the 13 remaining cases, the position for which Roberts argued was adopted by the Court in 9 of them. This means, among other things, that not only did Chief Justice Rehnquist and Justices Scalia and Thomas vote for Roberts’s position in a majority of these cases, but also the following justices: Kennedy, White, Souter, and, of course, the sainted Justice O’Connor. It will be hard to argue that such a winning position is outside the judicial mainstream.
That leaves only four cases in which Roberts did not win. In two of them, Justice O’Connor–the Democrats’ gold standard for an acceptable Republican justice–agreed with Roberts. In one of those two, the government actually got some of what it asked for, and lost the rest by only 5-4. In the other, also a 5-4 decision, not only did Justice O’Connor agree with Roberts, but so did the other swing justice, Anthony Kennedy; furthermore, in that case the Court reversed itself five years later and adopted the Roberts position. Again, this is hardly the stuff of extremism.
We are left, then, with only two cases in which Roberts actually worked on a brief, lost, and did not get O’Connor’s vote. One of the cases presented the rather technical question whether a damages remedy is available for a claim under Title IX of the Education Amendments of 1972. Roberts lost here, to be sure, but he may have had only limited choice in the position he took. Lawyers representing the federal government must be wary of endorsing overly broad damage remedies, since it is itself frequently a defendant; the Court also noted the argument that “an award of damages violates separation of powers principles because it unduly expands the federal courts’ power into a sphere properly reserved to the Executive and Legislative Branches.” In all events, the brief Roberts joined stressed that back pay and prospective relief would still be available to plaintiffs.
And the remaining case? The issue was whether a school principal could invite a rabbi to give a nonsectarian invocation at a graduation ceremony. The Supreme Court ruled 5-4 that this was an unconstitutional establishment of religion; while neither O’Connor nor Kennedy agreed with Roberts, he did get the vote of Justice Byron White, a Democrat who had been appointed to the Court by John Kennedy. Once more, Roberts’s position was hardly outside the mainstream.
It is of course possible that, in the course of advocating a winning and/or mainstream brief, Roberts might have written something imprudent. That, at least, is the Senate Democrats’ hope. But remember that, while deputy solicitor general, Roberts was nominated to the federal bench. Remember, too, that at this time Democrats controlled the Senate, which would have to confirm him. And remember as well that his written comments on the cases at issue would have been circulated to a wide circle of career attorneys in the Justice Department (this was the standard practice), many–most–of whom were not political allies. In these circumstances, how likely is it that John Roberts–no dummy–would have written down some gratuitous and damning comment?
The Democrats on the Senate Judiciary Committee are once again grasping at straws.
–Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Va. He served in the Justice Department from 1982 to 1993, including two years in the solicitor general’s office.