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Published: 8/16/2005

Judge leans toward school prayer

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - As an associate White House counsel in 1985, John G. Roberts, Jr., reacted positively to a proposed constitutional amendment to allow silent prayer in public schools, saying that a Supreme Court decision striking down an Alabama moment-of-silence law struck him as "indefensible."

That comment was made in a Nov. 21, 1985, memo to Counsel to the President Fred F. Fielding. The memo was among more than 5,000 pages of documents from Judge Roberts' four years in the White House counsel's office released on a computer disc yesterday by the National Archives here. The originals of the documents are in the Ronald Reagan Presidential Library in Simi Valley, Calif.

The records made public, which cover most of Judge Roberts' 1982-1986 tenure in the counsel's office, sounded several of the same themes found in files released from Judge Roberts' service in 1981 and 1982 as a special assistant to Attorney General William French Smith.

Still, their release is likely to confirm Senate Democrats in their view that the administration should disclose internal records from the next phase of Judge Roberts' public career: his service from 1989 to 1993 as deputy solicitor general in the George H.W. Bush administration. The current Bush administration has resisted the release of those documents, citing confidentiality concerns.

In particular, the documents released yesterday dealing with religion and the schools will whet the appetite of some senators for papers from the solicitor general's office dealing with a 1992 Rhode Island school-prayer decision.

In that case, the first Bush administration, in a brief joined by Judge Roberts, had urged the Supreme Court to uphold the constitutionality of a prayer offered by rabbi at a public-school graduation. The court rejected that position by a 5-4 majority that included Sandra Day O'Connor, the justice Judge Roberts would replace.

Previously released papers indicated that Judge Roberts thought it would be constitutional for Congress to deprive the Supreme Court of the power to hear cases involving school prayer, though he thought such "court-stripping" was bad policy.

In a May 6, 1985, memo to counsel Fielding released yesterday, Judge Roberts said, "I think I would recommend that we adhere to the old misguided view" even though there was a new attorney general, Ed Meese.

Judge Roberts was more sympathetic to the idea of an amendment to the U.S. Constitution allowing for a period of silent prayer or meditation. In the Nov. 21, 1985, memo, Judge Roberts said he would have "no objection" to a statement from the Justice Department supporting such an amendment.

The judge noted that the department had sided with "the losing side" in Wallace vs. Jaffree, the case in which the court ruled 6-3 that Alabama violated the First Amendment by providing for a period of silence "for meditation or voluntary prayer."

He added, "Many who do not support prayer in school support a 'moment of silence' (including Sen. [Joseph] Biden), and the conclusion in Jaffree [vs.] Wallace that the Constitution prohibits such a moment of silent reflection - or even silent 'prayer' - seems indefensible."

Five months earlier, however, in a memo to Mr. Fielding summarizing the decision in the Alabama case, Judge Roberts wrote that "careful analysis shows at least a majority of the justices would vote to uphold a simple moment-of-silence statute" as opposed to the Alabama law whose sponsors "stated clearly in the legislative history that their purpose was to return voluntary prayer to schools."

Along with documents about church-state issues, yesterday's release contains several files dealing with abortion - but no "smoking gun" for abortion-rights supporters who worry that Judge Roberts might vote to overturn Roe vs. Wade.

In a June 7, 1985, memo, Judge Roberts told Mr. Fielding that he has "no objections" to a draft of "talking points" prepared for President Reagan's telephone call to an anti-abortion rally, but the context seemed to be whether any of Mr. Reagan's proposed remarks posed a legal problem.

"The remarks call for reversing 'the tragedy of Roe [vs.] Wade and Doe [vs.] Bolton,'‚óŹ" Judge Roberts noted, "but the president has done that often in the past." The judge did find fault with another abortion-related message from Mr. Reagan, a proposed telegram to anti-abortion rights activists in which the president said Roe vs. Wade had "made void all our laws protecting the lives of infants developing in their mothers' wombs." In an Oct. 4, 1985, memo to Mr. Fielding, Mr. Roberts noted, "This is legally inaccurate, since Roe vs. Wade permitted some regulation of abortion - even a ban on abortion - depending on the stage of the pregnancy."

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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