One of the folders that I skimmed through as I visited the Ronald Reagan Presidential Library included a couple of memos that John Roberts wrote while he worked at the Department of Justice. I might observe that one of these memos persuasively argued for broader recognition of a right to privacy, another defended Roe v. Wade on equal-protection grounds, and another condemned capital punishment as unconstitutional, under any and all circumstances.
“Might,” if I was just making stuff up. There was nothing like that in the file. Instead, the first of the two documents that I came across dealt with Warren Burger’s proposal to create an intercircuit federal court of appeals (which Roberts condemned as a “terrible” idea). The second was this cover memo, to a report that was sent to White House lawyer Fred Fielding in 1983. The two-paragraph memo comments on pending legislation that, if passed, would request that the Chief Justice of the United States Supreme Court give an annual address to Congress.
Candidly, the memo’s subject matter isn’t very exciting. Of greater interest is a turn of the phrase that Roberts used. In describing the measure as banal but basically unobjectionable, Roberts remarked that in requesting an address by the Chief Justice, Congress was engaging “in a display of legislative masochism.”
Wonder if Chief Justice Roberts would feel the same way now?