As a young Reagan administration lawyer, John Roberts strongly advised against White House clemency for abortion-clinic bombers and cautioned against dealing with a California doctor who sought to bury aborted fetuses at Arlington National Cemetery.
Memos detailing Supreme Court nominee Roberts’ involvement on these and other hot-button legal issues were among the first 5,393 pages documenting his Reagan-administration work that were released Monday at the Ronald Reagan Presidential Library in Simi Valley, Calif., and the National Archives in Washington.
The public release came as the Bush White House culled through 50,000 pages of Roberts’ work in the Reagan administration from 1981 to 1986.
The nominee’s Reagan-era abortion memos gained interest because of last week’s controversial television advertisement paid for by NARAL Pro-Choice America. It attacked Roberts as someone “whose ideology leads him to excuse violence against other Americans.” NARAL pulled the 30-second ad after Senate Judiciary Committee Chairman Arlen Specter, R-Pa., denounced it as “blatantly untrue and unfair.”
The ad referred to Roberts’ Supreme Court arguments in 1991 and 1992 that the federal Ku Klux Klan law of 1871 could not be invoked against abortion protesters. The Supreme Court agreed, 6-3.
Roberts told the court at the time that “those who resort to violence to achieve it are criminals” who could and should be prosecuted under state law but that the anti-Klan act didn’t apply to them.
The memos released Monday detail White House requests for Roberts’ advice in response to news accounts in 1986 that Reagan was considering pardoning convicted clinic bombers.
Then-Rep. Romano Mazzoli, D-Ky., had written Reagan to express his “great distress” that leaders of two anti-abortion groups were quoted as saying that Reagan was open to clemency on a case-by-case basis. “Those who resort to violence … should be condemned and proscribed, not pardoned,” Mazzoli wrote.
Roberts and his immediate superior, deputy White House counsel Richard Hauser, said that a strongly worded reply was needed to dispel any hint of leniency for clinic bombers. “The president unequivocally condemns such acts of violence and believes that those responsible should be prosecuted to the full extent of the law,” their draft reply said.
Roberts was less successful in preventing Reagan from corresponding with Palms Springs doctor Philip Dreisbach, secretary of the California Pro-Life Medical Association. Dreisbach initially sought to bury 17,000 aborted fetuses at Arlington after Los Angeles authorities discovered their remains in 1982.
On being turned down for Arlington, Dreisbach took Reagan’s letter, surrounded it with pictures of dead fetuses and used it for fund-raising. Roberts, Hauser and White House counsel Fred Fielding drafted a reply to Dreisbach reminding of his misuse of Reagan’s letter when Dreisbach asked Reagan to address the memorial service when it was held in Los Angeles in October 1985.
Other Roberts papers released Monday show that he urged Reagan to endorse congressional efforts to amend the Constitution to permit “group silent prayer or reflection in public schools” after the Supreme Court, voting 6-3, struck down Alabama’s “moment of silence” law in 1985.
The court’s conclusion that “the Constitution prohibits such a moment of silent reflection or even silent ‘prayer’ _ seems indefensible,” Roberts wrote in a Nov. 18, 1985, memo to Fielding.
Memos also show that Roberts warned the Reagan White House away from endorsing 1985 Kentucky legislation proposing to post the national motto “In God We Trust” in public schoolrooms throughout the state.
Roberts called endorsement “inappropriate” and questioned its constitutionality in light of a 1980 ruling in which the Supreme Court voted 5-4 to make Kentucky take down Ten Commandments posted in public-school classrooms. Roberts was a law clerk at the time to then-Associate Justice William Rehnquist, one of four dissenters.
Roberts argued as deputy solicitor general in 1991 in favor of allowing a rabbi to offer a public-school graduation prayer on grounds that students are not compelled to attend. But the Supreme Court, voting 5-4, disagreed, with Reagan appointee Anthony Kennedy writing for the majority that “the objecting student had no real alternative to avoid” hearing the state-endorsed prayer.
(Contact Mary Deibel at DeibelM(at)shns.com)