More Early Roberts Files Are Released

As a Justice Department lawyer in the early 1980s, John G. Roberts Jr. said it was regrettable that the Reagan administration had not pressed the Supreme Court to uphold a Texas law barring the children of illegal immigrants from attending public schools, according to documents released Thursday.

The high court, in a 5-4 decision, declared the Texas law unconstitutional on June 14, 1982, saying a state may not “deny a discrete group of innocent children the free public education it offers to other children.”

The next day, Roberts and Carolyn B. Kuhl, another lawyer in the department, sent a memo to Atty. Gen. William French Smith describing the case as a missed opportunity for the Reagan administration.

“It is our belief that a brief filed by the Solicitor General’s office supporting the State of Texas -- and the values of judicial restraint -- could well have ... altered the outcome,” Roberts and Kuhl said. “In sum, this is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground and should have.”

The memo was among the 500 pages of files released Thursday by the National Archives from the 1981-82 period when Roberts, nominated for the Supreme Court in late July by President Bush, worked in the Justice Department.

In a related development, the White House announced Thursday that on Monday, it would release the first batch of documents from the next period in Roberts’ career -- his service in the White House counsel’s office from 1982 to 1986. A second batchwill be released on Aug. 22. All of the documents have been archived at the Reagan Presidential Library near Simi Valley.

In letters to leaders of the Senate Judiciary Committee, White House counsel Harriet Miers said that among the documents to be released are “thousands of pages” that the White House could have withheld under “constitutionally based privilege,” but chose not to.

The White House has not changed its stance against releasing any documents from what Democrats view as the most interesting period in Roberts’ career, when he served as deputy solicitor general from 1989 to 1993, in the administration of President George H.W. Bush.

Among the documents released Thursday is a memo detailing the work that Roberts did to prepare Supreme Court nominee Sandra Day O’Connor for her confirmation hearings, and a second in which he urged her to stick to her intention not to answer questions on specific cases.

Roberts is now the nominee for O’Connor’s seat on the high court, and administration officials have indicated that he is likely to take the same approach to senators’ questions.

“The proposition that the only way senators can ascertain a nominee’s views is through questions on specific cases should be rejected,” Roberts wrote at the time.

Thousands of pages related to Roberts’ work at the Justice Department were released two weeks ago, and some of the files released Thursday duplicated the earlier ones.

The documents from the early 1980s show that Roberts took the conservative side in debates within the Reagan administration. He believed, for instance, that Congress could strip federal courts of the power to order cross-town busing as a remedy for school segregation.

He also argued that the administration should fight the move in Congress to expand the Voting Rights Act to get rid of electoral procedures that prevented blacks from winning representation.

These memos have alarmed some civil rights advocates. They say they were surprised to see Roberts consistently seek to narrow antidiscrimination laws. His defenders say it should surprise no one that Roberts -- like other lawyers in the Reagan administration -- took a conservative view of those laws.

The Texas case, Plyler vs. Doe, illustrated for many conservatives the willingness of the Supreme Court to engage in “judicial activism” for liberal aims.

Then-Chief Justice Warren E. Burger had sounded that theme speaking for the four dissenters. “Were it our business to set the nation’s social policy, I would agree without hesitation that it is senseless for any society to deprive any children -- including illegal aliens -- of an elementary education,” he said.

But the Supreme Court did not have the authority to strike down the Texas law, he added.

The majority, led by liberal Justice William J. Brennan Jr., said Texas violated the “equal protection” guarantee in the 14th Amendment by excluding the children of illegal immigrants from its schools.

“It is difficult to understand precisely what the state hopes to achieve by promoting the creation and perpetuation of a sub-class of illiterates within our borders,” he said.

Kuhl, Roberts’ co-author on the 1982 memo, now is a Superior Court judge in Los Angeles County. In 2001, Bush nominated her for a seat on the U.S. 9th Circuit Court of Appeals, but Senate Democrats blocked a confirmation vote on her.

Also Thursday, Senate Judiciary Chairman Arlen Specter (R-Pa.) called on abortion rights activists to cancel a TV ad in which they accuse Roberts of “filing court briefs supporting violent fringe groups and a convicted clinic bomber.”

Specter denounced the ad by NARAL Pro-Choice America as “blatantly untrue and unfair” and said it “is not helpful to the pro-choice cause which I support.”

Thursday night, the group said it was withdrawing the advertisement.

“We regret that many people have misconstrued our recent advertisement about Mr. Roberts’ record,” said Nancy Keenan, president of NARAL Pro-Choice America.

“Unfortunately, the debate over that advertisement has become a distraction from the serious discussion we hoped to have with the American public,” she said in a letter to Specter released Thursday night.

The NARAL ad had referred to a brief that Roberts filed in his role as deputy solicitor general in a case known as Bray vs. Alexandria Women’s Health Clinic. In his argument, Roberts explicitly said he was not condoning violent blockades against abortion clinics, but said lower courts were wrong to permit the prosecution of antiabortion protesters under an antidiscrimination statute known as the Ku Klux Klan law.

That law was passed in 1871 to authorize the federal courts to protect newly freed slaves from violence by whites.