The Corner

The Washington Post On Roberts

Here’s a paragraph from the newspaper’s editorial today, with additional emphasis supplied by me: “Another disturbing element of Mr. Roberts’s writings is his willingness to let Congress strip the federal courts of jurisdiction to hear certain kinds of cases, such as abortion and school prayer, or to impose certain remedies, such as school busing. Though he questioned whether this was wise policy, Mr. Roberts viewed it as within congressional prerogative. Here, again, the Justice Department aide was to the right of one of the administration’s leading lawyers, then-Assistant Attorney General Theodore B. Olson. When Mr. Olson recommended opposing court-stripping bills, Mr. Roberts scrawled on the memo, ‘Real courage would be to read the Constitution as it should be read and not kowtow’ to liberal lawyers and writers. The constitutionality of court-stripping is one of the great open questions of law, with the potential of dangerous congressional encroachment on judicial independence. Senators need to explore whether Judge Roberts stands by his youthful views.”

The Post is omitting some important context. Olson had listed, as one of the reasons President Reagan should oppose jurisdiction-limiting legislation, that his coming out in opposition “would be perceived as a courageous and principled decision, especially in the press.” That argument is what prompted Roberts to scrawl the words the Post quotes.

The Post makes it sound as though Roberts had said that the Reagan administration should support court-stripping over the objections of liberal writers. Given the context, however, Roberts could simply have been saying that the administration should make the decision it believed followed from the Constitution–whatever decision that was–without being swayed by the prospect of praise from those liberal writers. The quote, in other words, does not establish that Roberts’s “youthful views” were what the Post takes them to be.

I hope that his youthful views included belief in the constitutionality of jurisdiction-limiting legislation, and that his mature views continue to include that belief. I think that belief is correct. But the Post is wrong to think that its quote establishes that Roberts held it.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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