Roberts favored anti-migrant law
He wanted Supreme Court to back ruling against
students
By David G. Savage and Maura Reynolds
Los Angeles Times, August 12, 2005
http://www.latimes.com/news/nationworld ... aug12,1,48
6667.story

WASHINGTON -- As a Justice Department lawyer in
the early 1980s, John G.
Roberts Jr. said it was regrettable that the
Reagan administration had
not pressed the Supreme Court to uphold a Texas
law barring the children
of illegal immigrants from attending public
schools, according to
documents released Thursday.

The Supreme Court, in a 5-4 decision, declared
the Texas law
unconstitutional on June 14, 1982, saying a state
may not 'deny a
discrete group of innocent children the free
public education it offers
to other children.'

The next day, Roberts and Carolyn Kuhl, another
lawyer in the
department, sent a memo to Attorney General
William French Smith
describing the case as a missed opportunity for
the Reagan
administration.

'It is our belief that a brief filed by the
Solicitor General's office
supporting the State of Texas -- and the values
of judicial restraint --
could well have ... altered the outcome,' said
Roberts and Kuhl. 'In
sum, this is a case in which our supposed
litigation program to
encourage judicial restraint did not get off the
ground and should
have.'

The memo was among the 500 pages of files
released Thursday by the
National Archives from the 1981-82 period when
Roberts, nominated for
the Supreme Court in late July by President Bush,
worked in the Justice
Department.

In a related development, the White House
announced Thursday that it
would release on Monday a first batch of
documents from the next period
in Roberts' career -- his service in the White
House counsel's office
from 1982-1986. A second batch of those
documents, all of which have
been archived at the Reagan Library in Simi
Valley, will be released
Aug. 22.

In letters to the leaders of the Senate Judiciary
Committee, White House
counsel Harriet Miers said that among the
documents to be released are
'thousands of pages' the White House could have
withheld under
'constitutionally based privilege,' but chose not
to.

Among the documents released Thursday is a memo
detailing the work
Roberts did to prepare Supreme Court nominee
Sandra Day O'Connor for her
confirmation hearings, and a second in which he
urged her to remain firm
in her intention not to answer questions on
specific cases.

Roberts is now the nominee for O'Connor's seat,
and administration
officials have indicated that he is likely to
take the same approach to
senators' questions.

'The proposition that the only way senators can
ascertain a nominee's
views is through questions on specific cases
should be rejected,'
Roberts wrote at the time.

The documents from the early 1980s show that
Roberts took the
conservative side in legal debates within the
Reagan administration. He
believed, for instance, that Congress could strip
the federal courts of
the power to order cross-town busing as a remedy
for school segregation.