- The Washington Times - Wednesday, July 27, 2005

Supreme Court nominee Judge John G. Roberts wrote that Congress should not be able to strip federal courts of jurisdiction in cases involving school prayer, according to a previously undisclosed document obtained by The Washington Times.

The document contradicts newspaper and wire-service reports that suggest he favored legislation aimed at barring federal courts from reviewing school prayer cases.

“Such bills were bad policy and should be opposed on policy grounds,” he wrote in a May 6, 1985, memo to his boss, White House Counsel Fred Fielding.

A source with access to such undisclosed documents said news organizations on Tuesday misrepresented a publicly available memo by Mr. Roberts, written when he worked at the Justice Department in the early 1980s, by suggesting he took the opposite stance.

“He was doing a devil’s-advocate piece when he was assistant attorney general,” the source explained. “Here in this later document, he references that, but he says: ‘My conclusion was that this was terrible policy.’”

The source, speaking on the condition of anonymity, blamed the news media misrepresentation on “the breathless reporting of liberal newspapers.”

Mr. Roberts wrote the 1985 memo in response to a request from the White House Office of Management and Budget, which sought a legal opinion on the proposed Voluntary School Prayer Act of 1985.

“This bill would divest the Supreme Court of jurisdiction to hear any case involving voluntary school prayer,” he wrote on White House stationery.

Mr. Roberts then noted that he had already looked into the issue when he was an assistant attorney general. Although he concluded such bills were “bad policy,” he acknowledged they were not expressly prohibited by the Constitution.

“After an exhaustive review at the Department of Justice, I determined that such bills were within the constitutional powers of Congress to fix the appellate jurisdiction of the Supreme Court,” he explained.

The Justice Department rejected this opinion and concluded that such bills were indeed prohibited by the Constitution.

“My views did not carry the day,” Mr. Roberts wrote. “The bills were, accordingly, opposed on constitutional grounds.”

Although Mr. Roberts believed such bills should be opposed on policy, not constitutional, grounds, he suggested it might be better not to revisit the issue.

“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 concluded.

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