The civil rights record of Supreme Court nominee John G. Roberts Jr. is coming under scrutiny amid evidence that, as a young lawyer, he sought to restrict the Voting Rights Act and to limit laws on sex discrimination, school desegregation and affirmative action.
“I’ve been surprised by what we have seen so far. It suggests a very disturbing and very different picture of Roberts’ record” compared with how President Bush’s nominee was initially portrayed, said Wade Henderson, executive director of the Leadership Conference on Civil Rights.
Henderson referred to a series of memos Roberts wrote while working in the Reagan administration, as well as Supreme Court briefs he wrote during the presidency of George H.W. Bush.
For example, Roberts said that if Congress gave judges the power to weigh the impact on black voters before approving changes in electoral districts it “would establish a quota system for electoral politics.”
He also described court-ordered busing for school desegregation as a “failed experiment” that should be ended, and said the landmark law against sex bias in schools and colleges should be limited to those university departments that receive federal funds.
“These are not smoking guns, but they do call for looking further,” said Henderson, whose coalition represents 180 national organizations that are concerned with civil rights.
Roberts’ defenders point out he was young then -- just 26 years old when he became an assistant to Atty. Gen. William French Smith. They also say it should not be surprising that Roberts agreed with views of senior Reagan administration officials.
“It is not a secret that John Roberts is a political conservative, and it should not surprise people that, when working for a conservative administration, he provided advice that seems to be on the conservative end of the political spectrum,” said Jennifer Braceras, a recent Bush appointee to the U.S. Commission on Civil Rights.
“But he is also a strong proponent of judicial restraint, and that should give political liberals great comfort. Irrespective of his political views on Title IX or affirmative action or any of these hot-button issues, he is not going to try to impose his views on the nation from his post in the judiciary,” Braceras said.
The dispute over the Voting Rights Act raged for a time in 1981 and 1982. It did not concern whether blacks would have the right to vote, but whether their votes would translate into political power.
The Supreme Court had surprised civil rights activists in 1980 when it upheld the all-white city commission that ran Mobile, Ala. About two-third of its voters were white and one-third were black. The three commissioners were elected in citywide elections, and white candidates always won easily under the at-large voting system.
Civil rights lawyers had challenged the system on grounds that it discriminated against blacks and excluded them from power. But in a 6-3 decision, the Supreme Court rejected the challenge and said only “purposeful discrimination” violated the Constitution and Voting Rights Act. In dissent, Justice Thurgood Marshall said the ruling left blacks with the right to cast “meaningless ballots.”
In Congress, civil rights advocates pressed to amend the Voting Rights Act to cover the “effect” of electoral systems. They said it should be illegal for cities or states to use systems that have the effect of excluding blacks from power.
Roberts wrote a series of memos urging the Reagan administration to oppose the change. Many of them were written as “talking points” for administration officials.
“I believe the goal of the Voting Rights Act to be that no one be denied the right to vote on account of race. If this is in fact the goal, an intent test, such as in the current [law], logically follows,” he wrote. “If, on the other hand, the goal of the Voting Rights Act is that election results reflect racial balance, an effects test should be used.... In essence, it would establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic politics.”
Congress adopted a compromise. Although no group has a right to proportional representation, it is illegal to draw electoral districts so as to deny blacks and other minorities an opportunity “to elect representatives of their choice,” Congress said.
The new law had a broad impact, particularly across the South. It led to the election of more blacks to city councils, county boards and state legislatures. Within a decade, it doubled the number of blacks in Congress.
But it did not have the “quota” system that Roberts had feared. The Supreme Court also put limits on the law in the 1990s, when it struck down newly drawn black majority districts in North Carolina and Georgia on the grounds that they were “racial gerrymanders.”
Gerald Hebert, formerly a senior lawyer in the voting rights section of the Justice Department, said that if Roberts’ view had been adopted, “you wouldn’t have had Latinos and African Americans holding city council seats and county commission seats across the country like you do now.”
Despite Roberts’ earlier views on civil rights, it was disclosed by the Los Angeles Times last week that he had helped gay activists win a landmark Supreme Court decision in 1996. As part of his pro bono work at a Washington law firm, he advised the lawyers who were fighting a Colorado anti-gay measure.
But even leading gay rights groups said they were more concerned about Roberts’ longer track record on civil rights laws.
Civil rights advocates are also concerned about Roberts’ views on Title IX, the 1972 federal law that prohibits discrimination based on sex at schools receiving federal funds.
At issue in the early 1980s was whether this law applied broadly to all colleges and universities -- including private ones. Because their students received federal aid, some said the law should apply to the college as a whole. Others, including Roberts, said the law should apply only to college departments that receive federal money. And because the athletic departments did not receive federal money, school sports would not be covered, according to this view.
In a 1982 memo, Roberts said the Education Department should not go after the private University of Richmond over allegations that it discriminated against women in its sports programs. “Under Title IX federal investigators cannot rummage willy-nilly through institutions, but can only go as far as the federal funds go,” Roberts wrote.
His legal advice proved prescient. Two years later, the Supreme Court adopted his view of the law in the case of Grove City College, a small Christian school in western Pennsylvania.
Roberts’ backers say the case shows why it is dangerous to read too much into his early writings, especially those expressing views while he was working as a political appointee.
“Part of his role as a lawyer in the Justice Department was to predict how the courts would rule on certain legislation or certain appeals and to evaluate whether an appeal would be successful,” said Braceras of the civil rights commission and a visiting fellow at the conservative Independent Women’s Forum. “So far as his ability to read the tea leaves and predict how the court would rule, he was right” in the Richmond case, she said.
But the narrow view of the law did not stand. Rather, Congress revised the education law and expanded its antidiscrimination provisions to broadly cover colleges and universities that benefit from federal funds.
Roberts was also criticized for taking a narrow view of the Title IX law later when he was the deputy to Solicitor General Kenneth W. Starr. Together, they sided with a Georgia school district in arguing that victims of sex discrimination in schools could not sue a college or school system. However, the Supreme Court ruled unanimously for the student in 1992 and said victims of sex bias had a right to take their claims to court.
More recently, the court has been closely split on who can sue to enforce civil rights laws.
In March, Justice Sandra Day O’Connor spoke for a 5-4 majority in saying that teachers and coaches can sue if they are retaliated against for having reported violations of Title IX. Roderick Jackson, who coached a women’s basketball team at an Alabama high school, said he was demoted after complaining that the girls were given second-class facilities.
With O’Connor retiring, civil rights lawyers fear Roberts could form a new majority that would make it harder to enforce the anti-bias law.