Judge Roberts and the Court-Stripping Movement

Over two decades ago, a young government lawyer named John Roberts tried—and failed—to convince the Reagan Justice Department to endorse a number of radical legislative proposals that would strip the federal courts of jurisdiction to hear cases concerning such issues as school prayer, school busing, and abortion.

Today Congress has under consideration a series of similar bills that would remove federal court jurisdiction over such matters as abortion, same-sex marriage, and patriotic and religious displays. The Senate is entitled to know whether Judge Roberts remains committed to these measures and would be likely to use his vote to uphold them should he be confirmed to our nation’s highest court.

Court-stripping statutes come in many shapes and sizes, but the most sweeping of them would prohibit the courts from considering the constitutionality of acts of Congress. Most of these focus on specific subjects, such as the “Pledge Protection Act,” which would relieve the courts of jurisdiction to decide the constitutionality of the Pledge of Allegiance, or the “Marriage Protection Act,” which would bar the courts from deciding the constitutionality of the part of the Defense of Marriage Act (DOMA) that excuses states from granting “full faith and credit” to marriages recognized by another state between persons of the same sex.

Lest anyone suppose that these are fringe proposals that aren’t going anywhere, both of these bills actually passed the House of Representatives last session, and one of them has been endorsed by the chairman of the Senate Republican Policy Committee.

Nor are these among the most extreme of the court-stripping proposals. Consider the “Congressional Accountability for Judicial Activism Act,” which would allow Congress to reverse Supreme Court judgments concerning the constitutionality of an act of Congress by a two-thirds vote. This is a variant of the proposal put forward at “Justice Sunday II” on August 14 by William Donohue, the president of the Catholic League for Religious and Civil Rights, who argued that the Supreme Court should be able to overturn a congressional enactment only if the vote is unanimous.

Court-stripping measures of this kind eliminate one of the most important of the checks and balances that prevent any of the three branches of government from becoming too powerful. Ever since Marbury v. Madison, 5 U.S. 137 (1803), it has been accepted that it is “the very essence of the judicial duty” to interpret the constitutionality of the laws enacted by Congress. These bills would undermine two centuries of judicial review, giving Congress the final word—as a federal matter—as to whether the laws it passes are constitutional. The state courts could continue to rule on the constitutionality of federal legislation, but there would be no final, authoritative interpretation of federal law that would be binding on the country as a whole.

Article III, section 2 of the Constitution gives Congress the power to make “exceptions” to the appellate jurisdiction of the Supreme Court. But these bills don’t make “exceptions”—they authorize Congress to pass laws curtailing constitutional rights and exempt those laws from Supreme Court review. This would leave Congress as the sole arbiter of the constitutionality of the laws it enacts—in effect, amending the Constitution without following the constitutional processes for doing so.

But if any of these measures were to become law, it is the Court that would have to decide whether its powers to interpret the Constitution can constitutionally be curtailed. It is therefore critically important to know whether Judge Roberts believes that such measures are constitutional.

However murky his views may be on some questions of law, we know quite a bit about his attitudes on court-stripping. In 1981, while he was working at the Justice Department, a group of right-wing senators and representatives, led by Jesse Helms, John Ashbrook, and Philip Crane, introduced some 22 court-stripping bills to eliminate the Supreme Court’s jurisdiction to consider prayer in the schools, abortion, school busing and other controversial issues.

Roberts wrote a series of memos to his superiors in which he argued that these bills were constitutional. In reaching this conclusion, he put himself at cross-purposes with then-Assistant Attorney General Ted Olson, who had written his own memo to the attorney general recommending that the Reagan administration oppose court-stripping bills on constitutional grounds. Olson expressed the view that by taking that stance the administration would be credited with an act of political courage. Roberts scrawled in the margin (pdf), “Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises, and Brinks,” all of whom he identified as pillars of the liberal legal establishment.

Roberts then wrote a 27-page rebuttal memo (pdf) strenuously arguing that court-stripping measures are constitutional. To be fair, he makes clear that the memo was written at the suggestion of Ken Starr as an advocacy piece, rather than a balanced presentation on the issue. But coupled with his evident unhappiness with Olson’s position, it is hard to read it as anything other than an expression of Roberts’ enthusiastic personal views. In any case, the hearings should provide him with an opportunity to clarify whether or not this was the case.

In a recent article in the Washington Post, Bruce Fein, a former Roberts Justice Department colleague, recounted a discussion with Roberts from the early ‘80s, in which he said, “I remember talking to John about that. I said if the purpose of a stripping measure was to deny the Supreme Court the definitive word in interpreting a constitutional issue, that I thought that would be unconstitutional. He was much more open to the prospect.”

That is a major understatement. In his memorandum to the attorney general, Roberts takes aim at judicial review itself: “It is argued,” he writes, “that divesting the Supreme Court of jurisdiction over a particular class of cases would undermine the constitutional role of the Court as the ultimate arbiter of constitutional questions. The Constitution, however, does not accord such a role to the Court.” In an apparent paraphrase from Herbert Wechsler, Roberts takes Marbury v. Madison as standing for the proposition that “[t]he authority of the Court to interpret the Constitution derives from the necessity of its doing so in the course of discharging its judicial responsibility to decide those cases and controversies properly presented to it.”

He then concludes, “If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final arbiter of the Constitution is removed.”

In other words, once the Court has been relieved of its responsibility to say whether a law is unconstitutional, we no longer need to worry about whether, as a federal matter, the law is constitutional or not.

In this respect, he places himself to the right not only of Ted Olson but of Senator Jon Kyl, whose Senate Republican Policy Committee last year endorsed a series of jurisdiction-stripping proposals but declined to embrace such measures as the “Marriage Protection Act” which deal with areas of law in which they acknowledge the value of uniformity.

Later in the memo Roberts acknowledges that even if his reading of the “exceptions” clause is correct, his argument would face other constitutional hurdles—particularly if the statute in question created a classification that affects fundamental rights. The “Marriage Protection Act” is a prime example of this. It would arguably be vulnerable to an Equal Protection challenge because it discriminates against an entire class of Americans—much as the Colorado amendment was held to discriminate against the same class of Americans in Romer v. Evans—the case in which Roberts famously provided some off-the-record legal advice. The argument would be that the Marriage Protection Act, like the Colorado amendment, unconstitutionally denies gay and lesbian Americans access to their government—in this case, the federal courts—to determine the scope of their civil rights. Of course we cannot know what Judge Roberts would make of this argument, any more than we can know (in advance of his confirmation hearings) whether he agreed with the result in Romer.

These bills aren’t going to pass. So why should we care what Roberts thinks about them?

One reason is that some of these measures have the support of influential members of the Senate Judiciary Committee and might very well get through. But even were this not the case, they should matter to us because they mattered so much to the nominee. It seems fair to ask what motivated him to stake out such an aggressive position on these measures—particularly given the likelihood that they would not become law. And it is hard to escape the conclusion that he was doing in the early ‘80s what his supporters on the far right are doing today: using these measures as a stick to express dissatisfaction with what he described as judicial “intrusions” in areas touching on fundamental rights.

We have sufficient evidence to know that the young John Roberts thought court-stripping an appropriate way for Congress to express its dissatisfaction with judicial decisions with which it disagrees. What we need to know—and what only he can tell us—is whether today, 24 years later, he still subscribes to those views.

Mark Agrast is senior fellow at the Center for American Progress.