There are worse ways to spend a couple of hours than browsing through John Roberts’ old memos from his White House counsel days. As a junior staffer in the Reagan Administration, Roberts brightened even the most prosaic report with his Atacama-dry wit, and his legal analysis (and judgment) were almost always extremely impressive.
I don’t believe that any of the Roberts memos that I’ll share below represent heretofore unknown “discoveries.” Indeed, some of the documents that I’ll discuss (and some that I won’t) were posted online by the National Archives back in 2005, with the media poring through them at that time. But some of these memos were overlooked during the Roberts nomination process, and in any event, it’s been a while since anyone has taken a look at them. Chief Justice Roberts’ tenure on the bench may have imbued some of these documents with additional meaning. Or not. (You can click on the dates if you want to check out the memos, which I’ve posted online.)
1. October 3, 1983: Roberts writes his boss, Fred Fielding, with comments on S.J. Res. 39, a proposal for a constitutional amendment that would impose ten-year term limits on federal judges. This memo came up during Roberts’ confirmation hearings, at which time he backtracked from the position he had outlined to Fielding:
there is much to be said for changing life tenure to a term of years, without possibility of reappointment. The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today. Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.
Somewhat apropos of the current controversy about Roberts’ handling of the ACA matter, the memorandum also provides:
It is certainly appropriate to protect judges from popular pressure if their task is limited to discerning and applying the intent of the Framers or legislators. To the extent the judicial role is unabashedly viewed as one in which judges do more than simply figure out what the Framers intended, the case for insulating the judges from political accountability weakens. The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches. At present, however, it probably makes more sense to seek to return the judges to their proper role than to revoke the protections defensible only if they are in that role.
2. October 19, 1983: Roberts’ duties included saying “no” a lot, or at least, ghostwriting a lot of letters that said “no.” Here is another memorandum from Roberts to Fielding, which explains the attached “no” response to a request from the Tony Conigliaro Benefit Committee of Marin County. The Committee had asked that President Reagan serve as honorary chairman of its 1984 Tony Conigliaro Sports Benefit. I’m publishing this letter only because it displays a very solid knowledge of baseball history. Roberts writes:
I assume you are familiar with the truly tragic story of Tony Conigliaro, whose promising professional baseball career – and indeed almost his life – was cut short when he was struck on the side of the head by a fastball. The film of the incident is literally chilling, and the tragedy was a major factor in the shift to baseball helmets with ear and temple protectors.
3. January 17, 1984: Here, Roberts writes Fielding and Richard Hauser to recommend Maureen Mahoney as an “ideal addition to our office.” According to Roberts, the attached Martindale-Hubble [sic] biography of Mahoney:
adequately conveys her stellar legal qualifications, but omits the facts that she is extremely personable, charming, and attractive. She exhibits none of the poorer qualities you may associate with current members of your staff from Indiana who clerked for Justice Rehnquist.
Lest you think that Roberts is up to something shady here, hinted at by his description of Mahoney as “attractive,” he also points out that she’s married and has a young son. Mahoney, of course, would become a stellar appellate attorney, “the female John Roberts,” who these days sometimes appears in front of Chief Justice Roberts.
4. February 3, 1984: This memorandum cuts apart AFSCME v. Washington, a “comparable worth” case decided in the Western District of Washington back in 1983. I’m sharing this memorandum because it’s a rare instance in which the young attorney really tears into a judicial opinion:
It is difficult to exaggerate the perniciousness of the “comparable worth” theory. It mandates nothing less than central planning of the economy by judges. Under the theory judges, not the marketplace, decide how much a particular job is worth., and restructure wage systems to reflect their determination. . . .
5. April 30 and May 1, 1984: Quite famously, in April 1984 Roberts was asked for his views on a possible White House award for Michael Jackson, to honor the singer’s charity work. (And indeed, the White House went ahead with the tribute on May 14, 1984.) Roberts thought that this idea was just slightly worse than, say, letting Howard Metzenbaum choose the next Supreme Court nominee. In an April 30 memo to Fielding, Roberts writes:
I share your view that [giving an award to Jackson] is a poor idea. [The] suggested award language praises Jackson as an outstanding example . . . for the youth of American and the world.” If one wants the youth of America and the world sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones to prevent voice change, mono-gloved, well, then, I suppose “Michael,” as he is affectionately known in the trade, is in fact a good example. Quite apart from the problem of appearing to endorse Jackson’s androgynous life style, a Presidential award would be perceived as a shallow effort by the President to share in the constant publicity surrounding Jackson, particularly since other celebrities have done as much for worthy causes as Jackson but have not been singled out by the President. The whole episode would, in my view, be demeaning to the President.
I don’t know about you, and I know the early 1980s were a different time (remember the Eddie Murphy “Tonight Show” stand-up routine about his family members being named after cereals?), but I don’t think words like “sashaying” and “androgynous” would pass muster today, if they ever did. While I would not say that any Roberts memo qualifies as “mean-spirited,” this language is as close as it comes.
Roberts also attaches a proposed memorandum for Fielding’s review. Per the proposed memo, Fielding would advise James Coyne, special assistant to the President for private sector initiatives, “I do not think we want the youth of America and the world mimicking Mr. Jackson’s androgynous life style or numerous other eccentricities, or adopting the dubious lyrics of his songs as a code by which to live.”
(As an aside, I was ten years old at the time Roberts wrote this memo. I tried to adopt the lyrics of “Want to Be Starting Something” as “a code by which to live,” but I couldn’t understand how to translate “Ma Ma Se, Ma Ma Sa, Ma Ma Coo Sa” to, say, whether I should buy the KangaROOS sneakers with the velcro straps, the ones with the laces, or just save up for a pair of Freezy Freakies gloves instead.
Also, can someone explain to me why, as of 1984 at least, the Reagan Administration wouldn’t want “the youth of America and the world” to mimic Jackson’s “androgynous life style”? Wouldn’t such a trend have dovetailed nicely with the administration’s anti-teen-pregnancy stance? Did the administration want “the youth of America and the world” to adopt an overtly sexual life style, instead? Did they create some sort of bogus award to lure Mickey Rourke to the White House to help encourage this?)
Getting back to the narrative, it appears that Roberts may have had second thoughts about his anti-Jackson diatribe. Another Roberts memorandum, dated the next day, May 1, 1984, also addresses the possible Jackson award, and reaches the same this-is-a-bad-idea conclusion, but omits the nasty comments about Jackson. Why the change of heart, or at least, of wording? Perhaps Roberts went to the local Sam Goody or The Wiz on the evening of April 30, 1984, bought a “Thriller” cassette, went home, poured himself a glass of scotch, put on his headphones, and somewhere around “Billie Jean” realized that Jackson’s music was pretty good. (The scene may have looked a little like this.) Maybe Roberts realized that his first memorandum came across as unduly harsh and just a little bit homophobic. Maybe Mr. Roper from “Three’s Company” wrote the initial memo, or Roberts’ evil twin, the one who parts his hair on the other side. I don’t know.
OK, OK, I do know that Roberts did not have a Saul-on-the-road-to-Damascus conversion, such that he did not become one of Jackson’s apostles and replace Tito on the Victory tour. How do I know this? Because of later Roberts correspondence that others have published elsewhere, relating Roberts’ continued frustration with what he perceived as the “obsequious attitude” that some White House staffers were displaying toward Jackson’s attendants later in 1984. So I’m guessing that Roberts simply slept on his April 30 language, and realized that his earlier comments were a bit over-the-top.
6. January 12, 1984: John Roberts’ path crosses with that of Oliver North. Strange, but true.
7. January 16, 1984: John Roberts speaks French? I don’t. Can anyone make out what this says?
8. June 9, 1983: This memorandum, on a proposal to break up the United States Court of Appeals for the Ninth Circuit (yes, this idea has been around forever; I am pretty sure that the cave paintings at Lascaux depict Neanderthals attempting to break up a primitive version of the Ninth Circuit), underscores how bashing on the West Coast court is nothing new. On this point, check out the quote that Roberts attributes to “a distinguished Second Circuit judge” (dollars to donuts, Henry Friendly); also, Roberts expresses his own opinion that the Ninth Circuit’s size gives rise to “a total lack of coherent legal interpretations.” Plus, I enjoyed Roberts’ line that Chief Judge James Browning, who opposed the measure, “is from Montana but apparently would like his chambers as well as his heart to remain in San Francisco.”
9. April 22, 1985: Finally, this memorandum (which is already online, through the National Archives; I’m going to be lazy and link to their post), in which Roberts responds to Pat Buchanan’s suggestion that President Reagan give a “major address on his judicial philosophy and the criteria he uses in selecting judges.” Buchanan also suggested that in his address, Reagan might comment upon recent Supreme Court decisions. Roberts responded:
I have no objection to an address by the President explaining his belief in judicial self-restraint and discussing the appropriate role of the three branches under the constitutional doctrine of separation of powers. . . . I would avoid criticism of specific Supreme Court decisions, however, not only because such criticism is rarely productive but also because it would inevitably overshadow the President’s view on the proper role of the Federal judiciary. Under no circumstances should the President’s address proceed along the lines of [Associate Deputy Attorney General Bruce] Fein’s* unalloyed jurisprudential iconoclasm. In short, Buchanan’s suggestion is a good one if we can control the development of the speech. If not, it could be a disaster.
* In November 1982, Fein had given an address titled “Executive Branch Criticism of Judicial Decisions: Vindicating the Constitution’s Separation of Powers,” in which he purported to “demonstrate that it is both historically commonplace and constitutionally imperative for the Executive Branch to challenge Supreme Court decisions that are unfaithful to the Constitution and might plausibly be reversed in future cases.” A copy of the address also can be found at the link above.