John Roberts "was on the wrong side of history" as a young lawyer in the Reagan and first Bush administrations. He was "hostile toward civil rights." His view of the Voting Rights Act was "no less harmful to our nation’s principles of inclusive democracy" than "the violence and intimidation of 1965."
So testified civil-rights legend John Lewis, now a Democratic representative from Atlanta, on September 16. Similar alarums have poured forth from all of the liberal civil-rights groups. Some have joined Lewis in tarring with the Jim Crow brush a nominee who has consistently endorsed equal opportunity for minorities and women.
In the process, these Roberts critics have squandered much of their already-depleted credibility.
Roberts’s interpretations of antidiscrimination laws in memos and other writings between 1981 and 1992 — which may also represent his current opinions — were sometimes too narrow, in my view. (I especially dislike his 1982 critique of a Supreme Court decision ordering Texas to admit illegal immigrant children to its schools.) But his positions were both well reasoned and consistent with his restrained view of judicial power.
The nominee’s greatest sin, in the eyes of civil-rights groups, has been opposition to their agenda of race-based and gender-based preferences — an agenda that has arguably done disadvantaged Americans of all races more harm than good.
Many media accounts have uncritically repeated claims by civil-rights groups that the Roberts writings from 1981 to 1992 were steeped in out-of-the-mainstream, right-wing ideology. Rather than debating his preening inquisitors on the merits, Roberts left these claims largely unrebutted. He chose instead to insist — sometimes implausibly — that he had been stating only his superiors’ views.
The point here is that those views were far more defensible than the media coverage might suggest. A sampler:
Voting Rights. Voting is "one of the most precious rights we have as Americans," Roberts testified last week. This was entirely consistent with his much-assailed memos criticizing what was to become the key 1982 amendment to Section 2 of the Voting Rights Act.
The 1982 amendment was not about the already-established rights of minorities to vote. It was about making it easier for them to elect black and Hispanic candidates, by challenging at-large elections, multimember districts, and other widely used state and local election rules. Such rules — often adopted for reasons unrelated to race — were big obstacles to minority candidates in racially polarized, majority-white districts.
In 1980, the Supreme Court had held, in Mobile v. Bolden, that plaintiffs challenging such voting methods must prove intentional discrimination. The 1982 amendment overturned Bolden by barring any voting method that "results in" dilution of the black vote.
During the 1981-1982 debate, Roberts wrote that the proposed amendment would establish "a quota system for electoral politics by creating a right to proportional racial representation on elected governmental bodies." This, Roberts added, would flout the traditional civil-rights goal of "ensuring equality of opportunity and treatment, not … mandating particular results in terms of racial or sexual representation."
Congress rejected such warnings and adopted the 1982 amendment by overwhelming bipartisan majorities. But history has borne out Roberts’s predictions. Courts did see the 1982 amendment as requiring creation of as many "majority-minority" districts as possible, some with bizarre shapes, to facilitate the election of black and Hispanic representatives in proportion to their share of the state or local population.
Another consequence, also predicted by Roberts, was to put the Voting Rights Act on a collision course with the 14th Amendment. The Supreme Court held in 1993, in Shaw v. Reno, that it was unconstitutional to design strangely shaped districts to "separate voters by race" — a practice that the 1982 amendment had been widely read to require. Such racial gerrymandering threatens to "balkanize us into competing racial factions," wrote Justice Sandra Day O’Connor for the 5-4 majority, by encouraging politicians of all races to appeal only to members of their own.
Meanwhile, as others had predicted, the 1982 amendment fostered an alliance of convenience between conservative Republicans and the most-liberal Democrats to pack black and Hispanic voters into majority-minority districts.
This dramatically increased the number of black and Hispanic representatives. But it also surrounded them with overwhelmingly white districts, where conservative Republicans — with no incentive to court minority voters — could defeat moderate Democrats who had depended on the support of minority voters. It may also have helped Republicans win control of the House in 1994.
So the net effect of the 1982 amendment may well have been to reduce the clout of black and Hispanic voters, by leaving them with black and Hispanic representatives who are isolated and powerless in Congress and in other legislative bodies.
Racial preferences. In various memos, Roberts articulated the Reagan Justice Department’s stand against what he called "reverse discrimination." As deputy solicitor general, he also urged the Supreme Court in 1990 to strike down racial preferences in awarding broadcast licenses.
These positions were at odds with establishment opinion. But they were very much in the mainstream of general public opinion. In virtually every neutrally worded poll, voters — often including black voters — have overwhelmingly opposed racial preferences.
In his testimony last week, Roberts applauded "beneficial affirmative action to bring minorities [and] women into all aspects of society," while stressing the distinction between such programs and the quotas that he had criticized before. He was noncommittal about systematic preferences that purport not to be quotas, such as the University of Michigan Law School admission program that the Court upheld by 5-4 in 2003 in Grutter v. Bollinger.
I would guess (and I hope) that he will narrow Grutter and other pro-preference precedents but stop short of overruling them. In any event, while preferences have undoubtedly increased the number of minority-group members in high places, they have done little for most black and Hispanic people. And they have diverted civil-rights energy and attention from the plight of the uneducated poor and near-poor. These people are not even minimally qualified to take advantage of the preferential programs that so obsess the civil-rights groups who claim to be champions of the downtrodden.
Women’s rights. "Roberts Resisted Women’s Rights," blared a front-page Washington Post headline on August 19. Not really. He has consistently supported women’s rights to be free from discrimination and to receive "equal pay for equal work."
What Roberts resisted — sometimes persuasively, sometimes not — were broad readings of ambiguous antidiscrimination laws. He also resisted the counterfactual assumption that the large male-female gap in average salaries across the nation proved pervasive sex discrimination.
I have my doubts about Roberts’s Reagan-era view that Title IX, the 1972 law barring sex discrimination in federally subsidized education programs, should not have been applied to college sports programs that did not themselves receive federal money. But that view was adopted in 1984 by the justices, including O’Connor, a strong supporter of women’s rights.
It’s also true that all nine justices rejected Roberts’s 1991 argument that Title IX did not authorize damage lawsuits by students claiming sexual harassment in high school. But the appellate decision that he was defending had been joined by Judge Frank M. Johnson Jr., a hero of the civil-rights movement.
Roberts was appropriately emphatic in assailing feminists’ efforts to require equal pay for men and women in different jobs if judges find the jobs to be to be of "comparable worth." Laundry workers would have to be paid as much as truck drivers, for example — despite the judgment of the marketplace that truck drivers, whether male or female, are worth more.
To write "comparable worth" into the law, wrote Roberts in 1984, would mandate "nothing less than central planning of the economy by judges." Hyperbolic? Perhaps. But the young Roberts’s word choices — including the unfortunate "illegal amigos" — tell us less about his widely impugned "heart" than do the many professional women and others who praise him as an unfailingly generous mentor, colleague, and friend.
"As a Democrat and a woman," testified former Roberts colleague Kathryn Webb Bradley, now a law professor, "I could not be here today if I did not feel confident entrusting my own rights and those of my children and their generation to John Roberts for safekeeping."