Hugh Hewitt and Duane Patterson at RadioBlogger are doing a Good Thing. They have invited bloggers to volunteer (and yours truly is one of many who have done so) to read through the voluminous John Roberts materials that have been released and that are available online at the University of Texas.
The purpose, of course, is to look for items that the mainstream media overlook or distort. Here’s a good example from one of my assigned boxes (Box 53, one of seven marked “Supreme Court”). It is a memo (beginning on p. 9 of the pdf file) from John Roberts to his boss, White House counsel Fred Fielding, dated June 21, 1985. It is interesting, I think, because of the picture of the Reagan White House that has been painted and re-painted in the MSM of a bunch of zealots tripping over each other to strip jurisdiction from the courts, eliminating the ability of the courts to halt the wanton violation of civil rights the Reaganites were attempting to unleash.
Maybe I’m being unfair. Maybe Roberts’s 6/21/85 memo to Fielding has been quoted (if so, I’m sure someone will tell me), but if so I missed it. Roberts wrote to Fielding:
Senator Helms has advised Pat Buchanan that he is considering appending a bill restricting the appellate jurisdiction of the United States Supreme Court to the Small Business Administration authorization bill. Buchanan has written a memorandum to [Assistant to the President for Legislative Affairs Max] Friedersdorf, advising him that “it is a constitutional procedure,” and asking if the Administration can support or at least not oppose it. Friedersdorf has asked your views.
We do not have a copy of what Helms proposes, so cannot give a definitive legal opinion. Assuming that what is at issue is one of Helms’ court-stripping bills, however, we cannot support it, unless the Administration dramatically changes its position. [Emphasis in original] In 1982, after exhaustive internal deliberations, Attorney General Smith advised Senator Thurmond that the Administration considers bills divesting the Supreme Court of appellate jurisdiction in constitutional cases to be unconstitutional. (You may recall that I disagreed with that conclusion on legal grounds, but agreed that the court-stripping bills were bad policy.)
I recall seeing many MSM articles noting Roberts’s support for stripping the Supreme Court of jurisdiction in certain matters, but I don’t recall any (that doesn’t mean they didn’t appear) noting his view that while doing so would be constitutional it would also be “bad policy.”
Maybe I just missed them.
John, do you not realize that anything undesirable is also clearly unconstitutional? The Constitution defends all good things, including (obviously) whatever you happen to want.
Seriously,
This “jurisdiction-stripping” thing was a short-lived legislative fad in (I think) the early 80s. I think the idea was that since Congress has the right to make “exceptions” to the Supreme Court’s appellate jurisdiction (Article III, Section 2), some people thought it would be a nifty idea just to exempt certain subjects from the SC’s appellate jurisdiction — stuff like, oh, abortion, “establishment of religion,” and the like. The intended result was that the Supreme Court could not hear such cases (or, obviously, overrule lower courts’ judgments).
To which Roberts apparently said: “Really bad idea, but not necessarily contrary to the Constitution.” I don’t remember whether Laurence Tribe (whose summary was all I ever read on this subject) argued that the idea was actually unconstitutional; certainly he thought it was lousy policy, and lousy policy whatever position you favored on any issue.