- The Washington Times - Thursday, August 11, 2005

Supreme Court nominee John G. Roberts Jr. wrote in 1982 that the Department of Justice lost an opportunity to stop the high court from forcing Texas to provide free education to illegal aliens.

In a memo he wrote as a special counsel to Attorney General William French Smith on June 15, 1982, Judge Roberts lamented the department’s failure to support a Texas statute authorizing local school districts to deny enrollment to illegal aliens, which the Supreme Court ruled unconstitutional in a 5-4 vote.

“The briefs for the State of Texas were quite poor,” Judge Roberts and colleague Carolyn B. Kuhl wrote in a memo to the attorney general. “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 of the case.

“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,” he wrote.

The memo was released Wednesday night by the National Archives, the third batch of thousands of pages of documents authored by or sent to Judge Roberts while he was working in the Reagan administration. The memo also was released in the first batch late last month.

The Archives also released memos in which Judge Roberts advises that no significant changes are necessary to the Voting Rights Act and that schools that accept students who pay for their tuition with federal grants are not subject to Title IX sex-discrimination guidelines. He also advised that the attorney general not meet with the leaders of the National Anti-Klan Network, but dispatch his colleague Rudolph W. Giuliani for the task.

These documents are among the few written records that can give the Senate a hint of Judge Roberts’ judicial philosophy as it prepares for his confirmation hearings beginning Sept. 6. An additional 45,000 documents relating to Judge Roberts’ time in the Reagan Justice Department from 1982 through 1986 are expected to be released Monday.

In what would turn out to be a landmark case for the rights of illegal aliens, the majority of the court ruled in Plyler v. Doe that it was “difficult to understand precisely what [Texas] hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries,” and declared that the 14th Amendment requiring equal protection under the law also applied to noncitizens.

Plyler is often cited as precedent by activists who wish to strike down ballot initiatives that would deny services to illegal aliens. The case also was cited in the World Organization for Human Rights’ appeal to the Supreme Court to void the enemy-combatant status of terror suspect Ali Saleh Kahlah al-Marri. The appeal was denied last year.

Judge Roberts disagreed with the expansion of the 14th Amendment to include illegal aliens, noting that the majority came to their decision despite not holding that education is a “fundamental right” in the United States.

He applauded the four-justice dissent, written by Chief Justice Warren E. Burger and joined by new Reagan appointee Sandra Day O’Connor, that “chastises the majority for ‘patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis’ to achieve ‘an unabashedly result-oriented approach.”

That language arguing for judicial restraint, Judge Roberts wrote, was similar to that Mr. Smith used in speeches nationwide.

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