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New documents show Roberts' views on school prayer, abortion, courts

From Bill Mears
CNN Washington Bureau

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John Roberts
Supreme Court
Judiciary (system of justice)

WASHINGTON (CNN) -- Supreme Court nominee John Roberts supported the idea of allowing prayer in public schools, writing as a White House lawyer in 1985 that such efforts were "within the constitutional power of Congress."

But while critical of the Supreme Court for banning school prayer, he also said legislative efforts to go around the courts were "bad policy."

The memo, part of more than 5,000 pages of documents released by the Ronald Reagan Library and National Archives on Monday, is the latest in series of papers related to Roberts' government service.

The Senate Judiciary Committee had asked for the material as it prepares for confirmation hearings next month for Roberts, the federal appeals court judge nominated by President Bush to replace retiring Justice Sandra Day O'Connor.

In a memo from November 21, 1985, Roberts criticized the Supreme Court's decision prohibiting "meditation or voluntary prayer" in Alabama schools. Roberts said the ruling's conclusion that "the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' -- seems indefensible."

The young lawyer supported efforts by Congress to partially restrict courts from intervening in silent-prayer cases. Then-Sen. Strom Thurmond, R-South Carolina, had proposed a constitutional amendment allowing school prayer.

Roberts noted the executive branch did not have a formal role in the amendment process, but would not oppose such efforts.

Roberts was also sharply critical of an idea by then-Chief Justice Warren Burger to create a "sub-judiciary" -- a new court of judges between the Supreme Court and the federal appeals court, where Roberts now sits.

"My own view is that creation of a new level of judicial review is a terrible idea," he wrote in a February 10, 1983, memo. He said the new court would hurt the morale of appeals courts judges, who Roberts noted were not being paid very well, and would lead to an exodus of well-qualified jurists.

And on abortion, Roberts suggested tempering remarks President Reagan was planning on giving to an abortion rights group in November 1985. A speech written for Reagan by the White House was to include the line that Roe v. Wade, the Supreme Court ruling legalizing abortion, "made void all our laws protecting the lives of infants developing in their mothers' wombs."

Roberts suggested changing the phrase "all our laws" to "many of our laws," pointing it was "legally inaccurate." He noted the Roe decision allowed some regulation of abortion, particular in the late term of pregnancy.

It was unclear from the memos whether that change was incorporated in the remarks Reagan gave.

On the issue of gender equality on worker wages, Roberts was critical of three Republican congresswomen who supported the concept.

Roberts referred to a 1983 case in which the Washington state supreme court found the state guilty of discrimination for paying women less than men for jobs of "comparable worth."

Roberts said in a February 3, 1984, memo that the ruling smacked of judicial activism. "This is a total reorientation of the law of gender discrimination," he concluded, since "it mandates nothing less than central planning of the economy by judges. Under the theory judges, not the marketplace, decide how much a particular job is worth."

Later that month, Roberts again addressed the issue, noting three GOP lawmakers applauded the ruling. One was then-Rep. Olympia Snowe, now the senior U.S. senator from Maine. The congresswomen complained women at the time earned only 60 cents for every dollar earned by men.

"I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistribute concept. Their slogan may as well be 'From each according to his ability, to each according to her gender,'" said Roberts.

CNN's David de Sola, Melissa McNamara, Kenneth Schultz, Xuan Thai, Deirdre Walsh and Robert Yoon contributed to this report.

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