Finding flaws in the Alliance for Justice’s report on John Roberts is like looking for bacteria in a Don’s John–we all know it’s there, so why bother to point it out? But let me give just one example of how sloppy and silly the report is.
On pages 52-53, the report makes a big deal about Roberts’s role as deputy solicitor general when he “supervised the government’s participation in an important case involving segregation in Mississippi state universities.” The main U.S. brief filed in the case–which had Roberts’s name on it–argued that the universities had not met their desegregation requirements. But the Alliance for Justice is disappointed that the brief stopped short of arguing that part of what the state had to do was increase funding to historically black schools. The state did not have to increase funding, the brief argued, because that would be too much like “separate but equal.”
The Alliance for Justice report then says: “In an unusual retraction, Judge Roberts’ superior, Solicitor General Kenneth Starr, later rejected and overrode this position.” The government informed the Supreme Court of the reversal in position “[i]n a reply brief signed only by Starr.” The report concludes: “Because the White House has refused to release Judge Roberts’ memos from this time period, the reason for the government’s change of position, the reason why Starr and not Judge Roberts signed the reply brief, and Judge Roberts’ views on the change of position are not directly knowable unless he is asked and answers about the matter at his confirmation hearing.”
This makes it sound like Roberts was in charge of the case, came up with the idea of not making the separate-but-equal argument in the main U.S. brief, was overruled by Starr once he found out about it, and then petulantly and stubbornly refused to sign onto the revised position. But this is all false.
Roberts would not have gotten involved with the case until it was before the Supreme Court, at which time Starr would have been involved to the same extent Roberts was. Starr obviously made the final–and in my opinion, correct–decision not to make the separate-but-equal argument, since his is the top name on the main U.S. brief. The reason that Starr changed the position was that President Bush told him to do so, as reported at the time in that obscure publication, the Washington Post (October 23, 1991, page A6). And the reason that Roberts’s name was not on the reply brief is that generally no one’s name–other than the solicitor general’s–is ever on a reply brief. More specifically, John Roberts’s name never appeared on a reply brief as deputy solicitor general.
Finally, the Alliance for Justice report gives Roberts zero credit for making the decision to ask the Supreme Court to hear the case, successfully persuading the Court to do so, and then persuading it that Mississippi had failed to do enough in desegregating its schools.
Where’s the justice in that kind of misleading hit job?
– Roger Clegg is general counsel of the Center for Equal Opportunity, and served in the Solicitor General’s office from 1985-1987.