IS THIS THE BEST THEY CAN DO?

John Roberts: The Nominee (William L. Taylor, 10/06/05, NY Review of Books)

The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages. It is a question of great relevance to Roberts's candidacy for the Supreme Court. [...]

Roberts was first employed in 1981 and 1982 as a special assistant to the attorney general, William French Smith. He went from there to the Reagan White House in November 1982, where he served as associate counsel to the President for three and a half years. During this period, Roberts played an important part in the administration's efforts to curtail the rights of African-Americans, to deny assistance to children with disabilities, and to prevent redress for women and girls who had suffered sex discrimination. He also justified attempts by the state of Texas to cut off opportunities for the children of poor Latino aliens to obtain an education. Roberts was in favor of limiting the progress of African-Americans in participating in the political process and of making far-reaching changes in the constitutional role of the courts in protecting rights. [...]

The issue that has had the most far-reaching implications for civil rights was given the unilluminating name "court stripping." It was part of the continuing legal struggle over enforcing the Supreme Court's landmark decision in Brown v. Board of Education to end mandated racial segregation in public schools. Efforts to implement Brown had stalled until 1964, when Congress passed the Civil Rights Act, which declared school desegregation to be national policy and provided the means for enforcing it. There followed Supreme Court decisions adding legal content to the act, which then led to widespread desegregation of public schools throughout the South.

In 1980, segregationists in Congress led by Senator Jesse Helms responded with bills to prohibit the Justice Department from bringing action in the courts to desegregate schools, and to bar the courts from issuing remedies that would require the busing of students for that purpose. Similar bills were proposed in cases involving school prayer and abortion rights.

A fierce debate followed at the Justice Department and in the Reagan White House. Some lawyers recognized that a great deal was at stake in these bills—that they were an assault on the Supreme Court's role as the final arbiter of what the Constitution means as well as an assault on the separation of powers. [...]

But it was in the second major civil rights battle of the early Reagan administration that Roberts, winner of an undergraduate history award at Harvard College, revealed a surprising ignorance of America's racial past. The issue in 1981 was whether Congress should renew key provisions of the Voting Rights Act of 1965 and overturn a 1980 Supreme Court decision that threatened to undermine the gains that African-Americans were making in securing their right to vote.

If I'm reading this right, Mr. Taylor thinks having Congress limit the judiciary is a violation of the separation of powers in one case, and completely necessary in the other. The opening lines clearly demonstrate that the author simply wants the judiciary to advance his political beliefs but, sheesh, you'd think he could do a better job of pretending to give a damn about the law.