Nominee supported prayer in schools, documents show

Supreme Court nominee John G. Roberts Jr. personally believed that a moment of voluntary silent prayer in public schools is constitutional, according to new documents released yesterday from his time in the Reagan administration.

The former associate White House counsel and current federal appeals court judge was writing to his boss to argue that the administration should support a constitutional amendment to overturn a 1985 Supreme Court ruling that struck down Alabama’s law allowing a moment of silence or prayer.

“The conclusion in Jaffree v. Wallace that the Constitution prohibits such a moment of silent reflection — or even silent prayer — seems indefensible,” he wrote in a Nov. 21, 1985, memo.

The Jaffree case was one of the court’s major decisions in 1985, and Judge Roberts wrote several memos on the issue that year.

Writing in May, he said Congress does have the constitutional authority to prevent the Supreme Court from ruling on voluntary school prayer, but he said he opposed that legislation because “court-stripping bills were bad policy.”

The administration already had decided in 1982 that court-stripping bills were unconstitutional, and Judge Roberts said in his May 1985 memo that the White House shouldn’t change its mind.

“There is much to be said for the virtues of stare decisis in this area, and I think I would recommend that we adhere to the old misguided opinion and let sleeping dogs (an apt reference, given my view of the opinion) lie,” he wrote.

Those were among 5,393 pages of documents released yesterday by the National Archives. The documents displayed a dry sense of humor and an opinion on many contentious issues of the day — from abortion to pay equity between men and women.

In one memo, Judge Roberts and Deputy White House Counsel Richard Hauser urged the administration to show no special leniency in pardons for convicted abortion-clinic bombers. The two men were writing a draft response to a member of Congress who said he was concerned about reports that the administration was considering pardons.

The memo comes a week after NARAL Pro-Choice America, in a now-withdrawn television commercial, accused Judge Roberts of supporting “a convicted bomber” in a case during the administration of the first President Bush.

In that instance, Judge Roberts, then in the solicitor general’s office, argued that a state trespassing law was a better avenue for bringing a civil claim against protesters than a federal anti-discrimination law passed in 1871 aimed at the Ku Klux Klan.

In another memo, Judge Roberts makes clear his view that Supreme Court precedent allows for some abortion restrictions: “Roe v. Wade permitted some regulation of abortion — and even a ban on abortion — depending on the stage of the pregnancy.”

Yesterday’s documents were “files of particular interest” to Democrats on the Senate Judiciary Committee, said Allen Weinstein, U.S. archivist.

Conservative allies of the White House scanned the documents and announced that there was nothing in them to scare conservative activists.

“Those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents,” said Ed Whelan, a former clerk to Justice Antonin Scalia and president of the Ethics and Public Policy Center.

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