by Crazy Vaclav, Thu Jul 28, 2005 at 08:10:14 AM EDT
Remember last year when the House passed legislation selectively stripping Article III courts of jurisdiction to hear cases concerning the "under God" clause? At the time, it seemed almost comical to me and not worth further consideration; the Supreme Court, not even Scalia or Thomas (well, maybe Thomas), would never agree to give away any of the judiciary's power and would find such action unconstitutional. (Interesting myDD thread from several months ago on this very topic.)
It turns out this was an issue back during the Reagan administration, though, back when Roberts was a rising star at the DOJ. The big pile of documents released this week indicates he actually thought this selective jurisdiction stripping was constitutional, just a bad idea from a political (or perhaps a PR) standpoint! (Click here, then scroll down to "Limiting Supreme Court's Reach.)
A document dated April 12, 1982 shows that Roberts disagreed with the view of then-Assistant Attorney General Ted Olson that Republican legislation in Congress to limit such jurisdiction faced constitutional problems.
But he also advised that the Justice Department not reverse course and to "let sleeping dogs (an apt reference, given my view of the opinion) lie," he wrote.
"Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks!" Roberts wrote.
("Tribes" likely refers to liberal Harvard law professor Laurence Tribe. The Washington Post speculates that "Lewises" and "Brinks" refer to New York Times columnist Anthony Lewis and then-American Bar Association President David Brink, who opposed the legislation.)
To me, this is pretty stunning, not only because it places Roberts well to the right of the frothing-at-the-mouth Ted Olson, but that it shows that Roberts thinks there's a constitutional basis for the judiciary rolling over and playing dead rather than obstructing unconstitutional statutes coming out of the legislative branch (well, assuming they further the right-wing agenda). (At least this is consistent, given his DC Circuit track record of giving complete deference to the executive in terror detention cases.)
So, perhaps the most important question the Senate should be posing to Roberts is: is the judiciary truly independent, or are they to be subsumed into the executive or legislative branches when it's politically expedient? If it's the latter, doesn't that mean that Marbury v. Madison was wrongly decided and that the whole principle of judicial review is bogus?