Behind The Smile

Bush Supreme Court Nominee John Roberts has An Alarming Record On Church And State And Should Not Be Confirmed, Says Americans United

by Rob Boston

Tony Perkins could barely contain his glee when he learned that President George W. Bush had nominated John G. Roberts Jr. for a seat on the U.S. Supreme Court.

“The president promised us a judge along the lines of [Antonin] Scalia and [Clarence] Thomas, and he kept his promise,” the Family Research Council president told USA Today. “There will be a philosophical shift in the court back to where it operates within its proper boundaries and respects the proper role of legislatures.”

Bush’s July 19 announcement that he had tapped Roberts, who has served on the U.S. Court of Appeals for the District of Columbia for less than two years, ended weeks of inside-the-Beltway speculation over Bush’s first high court nominee. Now that the speculation is over, all eyes have turned to Roberts’ record.

Roberts is under scrutiny for good reason: Justice Sandra Day O’Connor’s surprise retirement from the Supreme Court in early July gives Bush an opportunity to dramatically reshape the court and push it in a direction more likely to please the Religious Right.

Church-state and “culture war” controversies continue to divide the nation. Often these disputes end up at the Supreme Court. O’Connor was known for her moderate views, and her departure raises the stakes considerably. Issues like government aid to religion, school prayer, legal abortion and gay rights hang in the balance.

Religious Right groups know how serious this is and are determined to make certain that O’Connor’s replacement is more like Scalia than David H. Souter, the justice appointed by President George H.W. Bush in 1990 who has infuriated the right wing with his strong intellectual defenses of church-state separation.

The younger Bush is determined not to make the same misstep and is working overtime to appease religious conservatives. Shortly after O’Connor announced her retirement, media speculation focused on Attorney General Alberto R. Gonzales. Religious Right groups pounced immediately, asserting that Gonzales is insufficiently opposed to abortion.

Bush, who regards Gonzales as a friend, was angered by the attacks and told the groups to back off. They did, but Gonzales’ name was quickly dropped from consideration.

Washington reporters then began focusing on a handful of federal appeals court judges. The morning of July 19, rumors began flying that Bush was going to offer the job to Edith Brown Clement, a judge on the 5th U.S. Circuit Court of Appeals.

But Clement’s slim record on social issues made her essentially a huge question mark, and some right-wing groups complained that she too was soft on legal abortion. Late in the day, rumors surfaced that Clement was not the nominee, and around 7 p.m., an hour before Bush planned to announce his pick during a televised address, news outlets reported that Roberts had been chosen.

Although the media had considered Roberts a dark horse, he had apparently been on Bush’s short list for a long time. Two days after Roberts was nominated, New York Times reporter David Kirkpatrick wrote a piece noting that for at least a year before the Roberts nomination, “the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion.”

Roberts had worked as an attorney for President Ronald W. Reagan and in the Solicitor General’s Office during the presidency of the first Bush, but his short tenure on the federal appeals court has produced a very short paper trail. Some conservatives, it seemed, were worried that he might turn out not to be a true believer.

To assuage those fears, the White House tapped Jay Sekulow, chief attorney for TV preacher Pat Robertson’s American Center for Law and Justice, to make the rounds among the Religious Right and testify for Roberts. At the same time, the White House asked conservative Catholic GOP activist Leonard Leo to work on Roberts’ behalf in that community.

“I have known John Roberts for 17 years,” Sekulow told The Times. “When I talk about John Roberts with the groups, it is not theoretical; it is based on first-hand, direct experience. He and I have argued cases together before the Supreme Court. You can’t get more direct than that.”

Robertson noted Sekulow’s intimate role in the selection process, telling viewers of his “700 Club” July 20, “I might say that he was at the top of the list of candidates that Jay Sekulow and the ACLJ put together….”

Religious Right leaders were aggressively courted. The Rev. Rick Scarborough, an up-and-coming Jerry Falwell clone, told supporters via e-mail July 21 that he was initially worried about Roberts’ lack of a paper trail. He was soon persuaded to change his mind.

“Nevertheless, over the past two days, I’ve met with some of the most respected conservative leaders in the land,” wrote Scarborough. “Many have known Judge Roberts personally over a period of years. To a man – and woman – they assure me that the president’s first Supreme Court nominee is an authentic constitutionalist – not just a man of integrity and intellect, but one loyal to the real Constitution (rather than the frequently distorted document it’s become) and the Judeo-Christian values on which our Republic was founded.”

James Dobson of Focus on the Family is also enthused, issuing a statement praising Bush for nominating “an impartial, accomplished jurist to fill this crucial seat on the high court.”

TV preacher Jerry Falwell, noting that the White House had called him to solicit his input, remarked that he trusts Bush to make the right decision. Richard Land, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, took a similar line, remarking, “I will trust the president until I have compelling evidence to the contrary. The nomination of Judge Roberts has certainly not given me any reason at present to believe that the president has done anything other than fulfill his campaign promises.”

Comments like that and the Religious Right’s strong support for Roberts quickly raised concerns among advocates of church-state separation. Attorneys at Americans United were researching Roberts’ record even before he was tapped by Bush, since his name had appeared on several media shortlists. After the announcement, they stepped up the research.

It didn’t take long to uncover interesting facts. Although the file on Roberts is slender, it’s also telling. Roberts has been a loyal foot soldier in the far-right political ranks since 1980. He served as a legal clerk for arch-conservative Supreme Court Chief Justice William H. Rehnquist, was a legal advisor in the Reagan White House and was deputy solicitor general under the first President Bush.

It was in this final capacity that Roberts helped draft a disturbing legal brief that played a key role in Americans United’s decision to oppose his confirmation. In 1991, when the Supreme Court was considering a key school prayer case, Roberts helped write a sweeping legal brief asking the court to not only uphold school-sponsored prayers during graduation ceremonies but also to scrap long-standing precedent that protects church-state separation.

Working alongside Kenneth W. Starr, then the solicitor general, Roberts and other attorneys in the office drafted a brief imploring the high court to uphold graduation prayers as merely a “ceremonial” use of religion. Such usages, they argued, were common in history.

“What is abundantly clear is that the distinctly latter-day claim of ‘sanitized separation between Church and State’ was alien to the Founding generation’s vision of the [First Amendment],” asserted the brief.

Had the Starr-Roberts view been adopted, governments would have been free to sponsor prayer and other forms of religious worship in a variety of official settings. It might also have resurrected a number of practices now considered antiquated, such as mandatory Sunday-closing laws and religiously based censorship.

The Supreme Court, however, rejected the overture. In the lead opinion, Justice Anthony M. Kennedy went so far as to write that the proposal in the brief “turns conventional First Amendment analysis on its head.”

But the brief did far more than argue for more religion in civic life. It also asked the justices to severely weaken a standard the court formulated in the 1971 religious school aid case Lemon v. Kurtzman to determine church-state violations. The three-part “Lemon Test” holds that a government action violates the separation of church and state if any one of three conditions is present: the law lacks a secular legislative purpose; the law has the principal or primary effect of advancing or inhibiting religion or the law fosters an excessive government entanglement with religion.

Although the court has not applied the Lemon standard consistently over the years, the test provides important reinforcements to the church-state wall. The right wing has been gunning for the test for years and has repeatedly asked the high court to scrap it.

The Starr-Roberts brief reflects this hostility to the Lemon Test, calling it a “problem” that has spawned “pervasive confusion” in the lower courts.

(Roberts apparently has few qualms about asking the Supreme Court to ditch existing precedent. He also had a hand in a brief the solicitor general’s office filed in a 1989 abortion case, asking the justices to overturn Roe v. Wade. Read the brief in part, “We continue to believe that Roe v. Wade was wrongly decided and should be overruled…. The Court’s conclusion in Roe that there is a fundamental right to an abortion…finds no support in the text, structure or history of the Constitution.”)

Ayesha Khan, Americans United’s legal director, said she considers Roberts’ work in the solicitor general’s office alarming.

“The high court is so precariously balanced that even one new appointee could alter the balance and throw church-state jurisprudence into disarray,” Khan said. “Issues that we have long considered settled – such as school-sponsored prayer in public schools and direct government funding of religion – could be reopened and litigated all over again.”

Roberts’ defenders argue that as an employee of the solicitor general’s office, he was bound to support whatever view that office took. But that argument fails because it overlooks one salient fact: Roberts was a political appointee hired precisely because his views jibed with administration goals.

A revealing profile of Roberts by David G. Savage in the Los Angeles Times Aug. 5 underscored his conservative credentials on a host of issues. Roberts, the newspaper noted, was instrumental in helping bring about the “Reagan revolution” during the 1980s.

Washington lawyer Charles J. Cooper, a longtime friend of Roberts, told the paper Roberts “was in that position as the principal political deputy to the solicitor general because he was simpatico with the administration. He agreed with the thrust of what the administration was doing.”

Starr and Roberts, Savage wrote, “argued for limiting the scope of civil rights laws, ending race-based affirmative action, restoring some prayers to public schools and overruling Roe vs. Wade, the case that established a woman’s right to abortion. They sought to make it harder for environmentalists to challenge the government in court. They intervened on the side of Operation Rescue to shield abortion protesters from being sued. And they joined Texas state lawyers in arguing that new evidence of a death row inmate’s ‘actual innocence’ did not entitle him to reopen his case in federal court. In the first right-to-die case to reach the Supreme Court, they intervened on the side of then-Missouri Gov. John Ashcroft to argue that state officials may keep a comatose woman alive over the objections of her family.”

More troubling material soon emerged as reporters continued to comb through Roberts’ Reagan-era documents. Among them were a number of memos by Roberts arguing that Congress may remove the federal courts’ ability to hear cases dealing with abortion and school prayer.

Such “court stripping” measures were a new phenomenon in the early 1980s, and the Reagan Justice Department was unsure how to proceed. Even Theodore B. Olson, then the assistant attorney general and known as an ultraconservative, urged caution and counseled the department not to support court-stripping bills in Congress. Roberts felt differently and wrote repeatedly in opposition to Olson, once scrawling the word “NO!” on an April 12, 1982, Olson memo.

Roberts was only 26 when he drafted the memos, and Olson’s view eventually carried the day. Still, critics say Roberts’ eagerness to place a core constitutional freedom like religious liberty outside the jurisdiction of the courts is troubling.

Roberts’ embrace of the radical remedy of court stripping may have been sparked by his dislike of the Supreme Court’s 1962 and ’63 rulings banning coercive, school-sponsored programs of prayer and Bible reading in public schools and other decisions upholding church-state separation.

The Times reported that in one memo, Roberts “was sharply critical of the Supreme Court decision outlawing prayer in public schools, and he said the court had exceeded its authority when it allowed any citizens to challenge the transfer of public property to a parochial school.”

Roberts’ defenders are aware that his advocacy of court stripping is extreme and are trying to explain it away. On July 28, the conservative Washington Times reported the existence of a 1985 memo by Roberts recommending that the White House not back a bill designed to strip the Supreme Court of its ability to hear school prayer cases.

But Roberts’ later position seems to have been based more on political pragmatism than a true change of heart. Roberts called the bill “bad policy” and recommended opposition – but he then went on to note that he had earlier looked into the issue and concluded that court stripping was not unconstitutional, writing, “My views did not carry the day.”

Far from exonerating Roberts, the 1985 memo, AU says, makes it clear that Roberts remained convinced that Con¬gress has the power to pass court-stripping measures, even after his superiors in the Justice Department concluded otherwise. He had simply given up the fight.

Another document showed that Roberts in 1981 had a cavalier attitude toward the right to privacy. In a draft article commenting on the 1965 case Griswold v. Connecticut, which struck down a state law banning married couples from using artificial forms of birth control, Roberts took a narrow view.

“All of us, for example, may heartily endorse a ‘right to privacy,’” Roberts wrote. “That does not, however, mean that courts should discern such an abstraction in the Constitution and elevate it over other constitutional rights and powers by attaching the label ‘fundamental’…”

Opponents, meanwhile, said they were troubled by Roberts’ apparent ties to the Federalist Society, a network of right-wing attorneys whose members push an ultra-conservative agenda in the courts. In the late 1990s, Roberts addressed the organization and also served on a Washington steering committee. Today, he says he can’t recall having paid dues to join. (Leo, the conservative Catholic tapped by Bush to push Roberts’ nomination, works for the Society and has taken a leave of absence to help the nominee get on the court.)

Although no direct ties between Roberts and Religious Right groups have surfaced, his wife, Jane Sullivan Roberts, has ties to an anti-abortion group called Feminists for Life. Jane Roberts served on the organization’s board of directors from 1995-99 and did free legal work for it. She also works with the John Carroll Society, a conservative Catholic group that sponsors an annual “Red Mass” for members of the Supreme Court and others in the legal profession. In Washington, Catholic bishops often use the mass to put the church’s view of issues like abortion, same-sex marriage and parochial school aid before the justices.

The couple, described by acquaintances as devout Roman Catholics, has two children and attends the Church of the Little Flower, a growing parish in Bethesda, Md., whose congregation includes many powerful D.C.-area Catholics.

If confirmed, Roberts will become the fourth Catholic on the court. Although religious affiliation is not always indicative of judicial philosophy, Roberts’ theological views have already sparked one minor flap.

During a meeting with Sen. Richard J. Durbin (D-Ill.), Durbin asked Roberts to comment on how he might reconcile the demands of his faith with his judicial decision-making. Durbin later discussed the conversation with Jonathan Turley, a George Washington University law professor, who wrote a column about it.

Turley insists that Durbin told him that Roberts pledged to recuse himself from cases where Catholic views conflicted with civil law. A spokesman for Durbin later denied Roberts had gone that far. Reportedly, Roberts merely said his personal views would not affect his judging.

In late July, syndicated columnist David Broder expressed some concern that Roberts’ private school upbringing and affluent lifestyle may have isolated him from the everyday concerns of Americans.

“[R]oberts had led a sheltered life, absorbed in the law,” wrote Broder. “Private Catholic schools, Harvard, appointed jobs in the White House and Justice Department, a million-dollar-a-year corporate practice, married to a fellow lawyer all commendable but insulated.”

Continued Broder, “[Y]ou can search his record in vain for examples of his sensitivity to the impact of the law on people’s lives.”

Nevertheless, Roberts has frequently been described in the media as “brilliant” or “impartial.” Friends say he is easy-going and warm with considerable personal charm. He is unlikely to come across to the public as a dour Rehnquist or a sarcastic Scalia.

Ultimately, says Americans United, Roberts’ personal warmth is irrelevant. After researching Roberts’ record, the organization issued a statement July 20 announcing opposition to the nomination.

Americans United Executive Director Barry W. Lynn said Roberts’ views on school prayer and his attempts as solicitor general to persuade the Supreme Court to jettison more than 30 years of precedent protecting separation of church and state make him ill-suited for a lifetime appointment on the nation’s highest court.

“Roberts will work to dismantle the wall of separation between church and state and open the door to majority rule on religious matters,” Lynn said. “In a game with such high stakes, this unwise crusade should disqualify him.”

Lynn said Americans United staffers in the Legislative Department are working to get some pointed questions about separation of church and state into the hands of senators on the Judiciary Committee.

The Senate Judiciary Com¬mit¬tee will begin hearings Sept. 6. The committee is chaired by U.S. Sen. Arlen Specter (R-Pa.) with U.S. Sen. Patrick Leahy (D-Vt.) serving as ranking minority member. A week of testimony is expected, with a vote in the committee to follow. If Rob¬erts survives that vote, his nomination will go to the full Senate shortly thereafter.