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Roberts on prayer ban: 'Indefensible'

| Tuesday, Aug. 16, 2005

Supreme Court nominee John Roberts showed sympathy for the idea of permitting prayer in public schools in 1985, according to a memo released Monday, writing that a ruling to the contrary "seems indefensible" under the Constitution.

As a young lawyer working in the Reagan administration, Roberts wrote he would have no objection if the Justice Department wanted to express support for a constitutional amendment permitting prayer.

Referring to a Supreme Court ruling issued earlier that year that struck down an Alabama school prayer law, he said, "The conclusion ... that the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' -- seems indefensible."

The Alabama law, ruled unconstitutional by a divided court, mandated a one-minute period of silence for meditation or prayer.

Roberts' two-paragraph memo, written to White House counsel Fred Fielding, was among nearly 5,400 pages of records released yesterday by the Ronald Reagan Presidential Library. They comprise a portion of the material relating to Roberts' tenure as a member of the office of White House counsel.

An additional 478 pages that cover the same subject areas remain under seal, according to Allen Weinstein, archivist of the United States. White House spokesman Steve Schmidt said the library had withheld material based on requirements in the Freedom of Information Act to protect privacy and national security.

The White House "did not hold any back" after reviewing those cleared for release by the library, Schmidt said.

The library contains an additional 40,000 pages relating to Roberts that are expected to be made public before Senate confirmation hearings convene Sept. 6.

The records released yesterday indicate that as a young lawyer, Roberts provided legal analysis on a variety of topics.

When then-Chief Justice Warren Burger suggested creation of a new appeals-level court to cut down on the Supreme Court's workload, Roberts wrote that was a "terrible idea."

"The fault lies with the justices themselves, who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented," he said.

When Sen. Robert C. Byrd, D-W.Va., then the Senate majority leader, urged Reagan in 1985 not to exercise his constitutional power to make recess appointments, Roberts disagreed in a draft reply.

"The courts have rejected your suggestion that the recess appointment power was intended to be used only in rare and exceptional cases," he wrote.

Serving in a conservative administration, Roberts strongly opposed a district court ruling that had upheld a claim of "comparable worth." The suit was filed by women arguing they were victims of discrimination because they were paid less than men working in other jobs that the state had decided were worth the same.

"It is difficult to exaggerate the perniciousness of the 'comparable worth' theory," Roberts wrote. "It mandates nothing less than central planning of the economy by judges."

Comparable worth has faded as an issue in the intervening two decades, but not so school prayer. It remains a perennial issue in which judges -- and justices -- are occasionally asked to determine where to draw the line between church and state.

The day the court struck down the Alabama state law that mandated a period of silence for "meditation or voluntary prayer," Roberts prepared an instant legal analysis.

Despite the ruling, he wrote Fielding, "careful analysis shows at least a majority of the justices would vote to uphold a simple moment of silence statute."

Roberts went on to speculate that "the outcome of this case shifted in the writing." He said he thought Justice William Rehnquist had started out writing a majority opinion to uphold the law, but his argument went too far for Justices Sandra Day O'Connor and Lewis Powell.

They wound up dissenting, Roberts noted.

"Thus, as I see it, Rehnquist took a tenuous five-person majority and ... ended up losing the majority."

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