White House to Release Some of Roberts' Memos

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The White House says it will release a portion of the memos Supreme Court nominee John Roberts wrote when he served in Republican administrations. Other memos, written when Roberts was a Supreme Court law clerk, reveal a conservative and careful legal approach.


From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.


And I'm Robert Siegel.

The White House says it will release some but not all of the memos that Supreme Court nominee John Roberts wrote when he served in Republican administrations in the 1980s and '90s. Democrats say the records are needed because they could provide clues to his thinking on important issues. But there are other memos to go through: the memos that Roberts wrote as a Supreme Court clerk in 1980 and 1981. Those memos are usually off limits to Congress and highly confidential. But NPR legal affairs correspondent Nina Totenberg has reviewed a significant portion of them, and she has this report.


The memos show a young man who is very conservative, very careful and very much like his boss, then-Associate Justice William Rehnquist. The memos we reviewed are those Roberts prepared as a member of the so-called cert pool. That's the pool of law clerks assigned to review the thousands of cases that are appealed to the court each year and to make recommendations about which few should be granted review by the nation's highest court; in legal jargon, which ones should be granted certiorari. The memos are buried among the papers of the late Justice Harry Blackmun. Each one states the facts of the case, the arguments on each side and then discusses why the case either does or does not present a question of law that needs to be resolved.

A clerk's recommendation is not necessarily followed by the justices, as evidenced by the case of Carter vs. Kentucky. At issue was what steps a trial judge must take to ensure that the jury does not draw any adverse conclusions if a defendant does not take the witness stand. In this case, Lonnie Joe Carter was arrested for allegedly burglarizing a hardware store. When he did not take the witness stand in his own defense, the prosecutor, in his closing argument, told the jury that if there was a reasonable explanation for why Carter ran when he saw police, it, quote, "was not on the record." The defense lawyer asked the judge to instruct the jury that the defendant is not compelled to testify, and the fact that he has chosen not to testify should not be used as an inference of guilt. But the judge refused, and Carter was convicted.

The defense appealed all the way to the US Supreme Court, an appeal that was initially reviewed by clerk John Roberts. His memo concludes for the recommendation that the court leave the conviction intact. He said no previous Supreme Court case suggested there was any constitutional right to such an instruction. The justices, however, disagreed. They took the case for review and, by an 8-to-1 vote, ruled that since the Constitution guarantees that no adverse inferences are to be drawn from a defendant exercising his constitutional right not to testify, in a case like this, where an instruction is asked for by the defense to make that clear, it must be given. The lone dissenter was Roberts' boss, Justice Rehnquist.

By and large, Roberts' memos are straightforward and unremarkable. Though other clerks sometimes are more troubled than Roberts by the facts of cases, they often reach the same conclusions. And Roberts, even when he is troubled, is such a stickler for following legal procedures that he recommends staying out of otherwise important controversies.

Take, for example, the self-defense case posed by an Ohio woman convicted of manslaughter in the killing of her abusive husband. When the woman shot her husband, Ohio law did not put the burden of proving self-defense on the accused; it put the burden of disproving it on the prosecutor. But three months later, and 10 weeks before the woman's trial, the Ohio Legislature passed a new law putting the burden of proof on the defense. Roberts agreed in his memo that trying the woman under a law that had not existed at the time of the offense presented a substantial constitutional question. But since her lawyer had not raised the issue at the time of trial, said Roberts, quote, "I don't believe the court can properly reach the issue." Other clerks disagreed, but the court followed the path recommended by Roberts and declined to review the case.

Of interest in the Roberts' memos, too, are some subjects that he later wrote about as an appeals court judge, like the Endangered Species Act. In 2003, to the consternation of environmentalists, Judge Roberts wrote an opinion that seemed to suggest some doubt about the constitutionality of the act. But in 1981, as a 26-year-old law clerk, he clearly sided with the government in a case brought by oil drillers who claimed their property had been unconstitutionally taken under the Endangered Species Act when the government had refused to permit drilling on leased federal land because it might endanger the California condor. `I agree with the Interior Department,' wrote Roberts, `that the federal government should not be penalized because these drillers waited until the last moment of their 10-year lease to propose a plan for development. If they had done so earlier and been denied, they could have proposed an alternative that would have safeguarded the condors.'

And finally, what is clear in these memos is Roberts' irrepressible, cutting and droll wit. In a case involving a man who went on a spending spree after he deposited a check that he altered from $2.32 to $232,000, Roberts wrote: `As the facts indicate, the defendant is not one of the brighter individuals to pass through the California criminal justice system.' Nina Totenberg, NPR News, Washington.

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