In John Roberts's America . . .
Currie, Duncan
In John Roberts's America . . . The civil rights laws mean what they say. BY DUNCAN CURRIE SENATOR TED KENNEDY charges Supreme Court nominee John Roberts with embracing a "rather cramped view of...
...That caveat aside, the case against him boils down to this: In memos to his superiors, he opposed an expansive interpretation of Title IX that had no rooting in the original law...
...Critics have tried to tease out his views from internal Reagan-era memos—a Duncan Currie is a reporter at THE WEEKLY STANDARD...
...Politically, the tactic seems shrewd: Paint Roberts—the white, Harvard-educated son of a Bethlehem Steel exec—as insensitive to the historic plight of women and blacks...
...A Supreme Court majority that included Justice Sandra Day O'Connor concurred...
...But it should eschew "intrusive remedies" such as busing, which had proven "so disruptive to the education of our children...
...He described busing not just as fruitless but as counterproductive...
...The Reagan Justice Department concluded the latter...
...The same holds for mandatory busing to achieve racial integration in public schools, a policy that has remained, as the historians of race relations Stephan and Abigail Thernstrom write, "profoundly unpopular with the general public...
...thorny task, since Roberts mostly was promoting the policies of the administration he worked for...
...But Kennedy & Co...
...The receipt of federal aid by students "does not trigger institution-wide coverage under Title IX," the Court held...
...By the early 1970s, blacks in the former Confederacy were registering and voting at record levels...
...The questions raised here are a bit murkier...
...But when the Bush administration released reams of papers from Roberts's 1981-82 tenure as a special assistant to Attorney General William French Smith and his 198286 stint in the White House counsel's office, they found a new angle: civil rights...
...If Democrats wish to press Judge Roberts on racial bean-counting, they won't get much succor from public opinion...
...If a school benefited indirectly from federal aid— through, say, tuition grants to some of its students—was the entire institution subject to Title IX...
...On racial matters, Roberts boasts a "liberal" paper trail in the original sense of the term: a robust devotion to equal opportunity and colorblind justice (though at least one position has caused some conservatives concern, about which more later...
...In 1988, it broadened the reach of Title IX—over President Reagan's veto—to stipulate "institutionwide coverage...
...The Justice Department should of course "guard against impermissible discrimination," Roberts counseled Attorney General Smith in a May 1982 memo...
...BY DUNCAN CURRIE SENATOR TED KENNEDY charges Supreme Court nominee John Roberts with embracing a "rather cramped view of the Voting Rights Act...
...But that won't be much help to Senate liberals, most of whom probably agree with his position in Rice...
...Roberts, then in private practice, argued the state's case before the High Court, and later said the ruling "could have been a lot worse...
...In the landmark 1984 case Grove City College v. Bell, the Justice Department argued for that interpretation of Title IX...
...Extremely troubling" documents cast him as "a deeply committed ideologue," according to Wade Henderson of the Leadership Conference on Civil Rights...
...According to the Court, Hawaii's racialist statute clearly violated the 15th Amendment...
...and he opposed race-based gerrymandering...
...The emphasis soon shifted from protecting the rights of black voters to increasing the number of black officeholders—as Roberts later put it, from "equal opportunity" to "equal results...
...he opposed mandatory busing...
...The 1982 debate hinged on just that issue...
...Under Title IX," Roberts wrote in a 1982 memo to Smith, "federal investigators cannot rummage willy-nilly through institutions, but can only go as far as the federal funds go...
...It's hard to see how a rehash of the struggle over busing can tarnish Roberts's chances for confirmation...
...Croson (1989...
...If there is a stain on his civil rights record, it may be this abandonment of colorblindness...
...The NAACP's Theodore Shaw is "deeply disturbed" by Roberts's record...
...he opposed racial preferences...
...Racial set-asides were fatally flawed, Roberts wrote in 1981, because they obliged "the recruiting of inadequately prepared candidates...
...But in his 1982 memo, Roberts's counsel was in tune with the 1972 legislation as affirmed by the High Court...
...By the time he joined the attorney general's office, civil rights lobbyists were, in effect, battling for proportional racial representation...
...To be sure, Congress deemed otherwise...
...Writing for the majority, Justice O'Connor stressed that affirmative action programs "must serve a compelling governmental interest, and must be narrowly tailored to further that interest...
...By a vote of 7-2— the two dissenters being Justices John Paul Stevens and Ruth Bader Ginsburg—the Supreme Court struck down a Hawaiian law that restricted voting rights for Office of Hawaiian Affairs trustees to people with "Native Hawaiian" blood...
...But the "fix" was in, as it were, and Congress retooled the Voting Rights Act to bring "results" under the rubric of "discrimination...
...But what about a fight over the Voting Rights Act...
...He favored an extension of the law, but not "a system of proportional representation based on race or minority language status...
...During the early 1980s, he backed Reagan's "antiquota principles" and cast a skeptical eye on "the purported need for race-conscious remedies such as busing and affirmative action...
...The law was working, Roberts noted, and "if it isn't broken, don't fix it...
...Looking back, Roberts was vindicated: The 1982 bill did indeed midwife racially gerrymandered districts...
...are working with pretty thin material...
...When the Voting Rights Act first passed 40 years ago, its primary purpose was to enfranchise southern blacks and enforce the 15 th Amendment...
...So much for the nominee's brief honeymoon...
...Liberals were sure to raise Cain over abortion, and maybe pick nits on the commerce clause...
...The one item in Roberts's portfolio that has raised some conservative eyebrows is his role in the 2000 case Rice v. Cayetano...
...Or did the law apply only to the specific program...
...The Supreme Court agrees...
...Under our view of the law," he went on, "it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences...
...He advised White House counsel Fred Fielding in February 1984, "the evidence [shows that] busing promotes segregation rather than remedying it, by precipitating white flight...
...Yet a debate soon arose over its limits...
...Title IX of the Education Amendments of 1972 was born with a simple purpose: to ban sex discrimination in "any education program or activity receiving Federal financial assistance...
...Now is not the time for a Court to be rolling back the right to vote," Democratic National Committee chairman Howard Dean said in a statement last week, calling the Roberts pick "deeply troubling" in this regard...
...In Justice Department memoranda, Roberts warned that a House bill to amend the Voting Rights Act would "establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic principles...
...Some white officials in the Deep South resisted this revolution through electoral sleight-of-hand, tinkering with districts and voting procedures...
...Their efforts to blunt black political power compelled Congress to revamp the Voting Rights Act in 1970, 1975, and 1982...
...Six years later, in Adarand Constructors v. Pena, the Court insisted on "strict scrutiny" as "the proper standard for analysis of all racial classifications...
...And it did so, with remarkable alacrity...
...Let's take each in turn...
...With every passing day," laments People for the American Way boss Ralph Neas, "it is becoming clearer that John Roberts was one of the key lieutenants in the right-wing assault on civil rights laws and precedents...
...An amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota," it held in Richmond v. J.A...
...The brief against Roberts is that he was "anti-civil rights" on four issues: Title IX, affirmative action, busing, and voting rights...
Vol. 10 • August 2005 • No. 45
