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With Starr, Roberts Pushed Reagan Agenda

August 05, 2005|David G. Savage | Times Staff Writer

WASHINGTON — For many years, the solicitor general was known as the "10th justice," a trusted figure who advised the Supreme Court on the law and whose client was the United States.

But midway through the Reagan administration, the office took on a new role. The solicitor general became not just the government's chief lawyer before the high court, but the point man for a conservative transformation in the law.

When John G. Roberts Jr., then 34, joined Solicitor General Kenneth W. Starr as his top deputy in fall 1989, they were determined to make the Reagan Revolution a legal reality.

Roberts "was in that position as the principal political deputy to the solicitor general because he was simpatico with the administration," said Washington lawyer Charles J. Cooper, a longtime friend of the Supreme Court nominee. "He agreed with the thrust of what the administration was doing."

Together, Starr and Roberts pressed a strongly conservative legal agenda for 3 1/2 years.

They argued for limiting the scope of civil rights laws, ending race-based affirmative action, restoring some prayers to public schools and overruling Roe vs. Wade, the case that established a woman's right to abortion.

They sought to make it harder for environmentalists to challenge the government in court. They intervened on the side of Operation Rescue to shield abortion protesters from being sued. And they joined Texas state lawyers in arguing that new evidence of a death row inmate's "actual innocence" did not entitle him to reopen his case in federal court.

In the first right-to-die case to reach the Supreme Court, they intervened on the side of then-Missouri Gov. John Ashcroft to argue that state officials may keep a comatose woman alive over the objections of her family.

"Ken Starr and John Roberts are genuine conservatives," said Christopher J. Wright, a lawyer who worked under them at the solicitor general's office. "They're highly professional and excellent lawyers. But I'm a Democrat, and I can't say I always agreed with them."

Because it opens the clearest window on his legal views, Roberts' record at the solicitor general's office under President George H.W. Bush has become the focus of attention for Senate Democrats. They have been studying 81 Supreme Court briefs signed by Roberts between 1989 and 1993, and have asked the White House to disclose the memos he wrote in 16 of those cases.

But the White House has refused to provide the memos and other supporting documentation, claiming a lawyer-client privilege. As a result, Roberts' legal philosophy during that highly politicized period can only be gleaned from the public files.

They suggest a strongly, though not uniformly, conservative approach to issues.

Unlike his position as an assistant to Atty. Gen. William French Smith in 1981 and 1982, Roberts' later post in the solicitor general's office gave him the chance to try to reshape the law at the Supreme Court. And when teamed with Starr, he was not shy about pressing sharply ideological positions in the court.

The duty and role of the solicitor general was a subject of debate in the 1980s. Reagan's first solicitor general, Rex Lee, quit in frustration, saying he was reluctant to "press the administration's policies at every turn .... I'm the solicitor general, not the pamphleteer general."

The solicitors who followed Lee, including Charles Fried and Starr, were more willing to advocate the ideological views of the administration.

And in the Reagan and Bush administrations, that meant urging the Supreme Court to overturn Roe vs. Wade.

In 1991, for example, when the court took up a free-speech challenge to an abortion regulation, Starr and Roberts filed a brief saying, "We continue to believe that Roe was wrongly decided and should be overruled." The regulation at issue prohibited doctors and nurses at federally funded family planning clinics from discussing abortion with their patients. The court later upheld the regulation in a 5-4 decision, but without discussing the validity of Roe vs. Wade.

The next year, Starr's office intervened in a Pennsylvania dispute to urge the court again to overrule Roe. "The protection of human life -- in and out of the womb -- is certainly the most compelling interest that a state can advance," Starr said. But the high court rejected the advice and, in a 5-4 ruling, said women could opt for an abortion during the first six months of a pregnancy.

The challenging of Roe -- and the view at the solicitor general's office of its proper role -- is defended by Columbia University law professor Thomas Merrill, who worked under Starr and Roberts.

"The president [George H.W. Bush] had campaigned for overruling Roe vs. Wade," he said. "We in the office knew the administration's position. It was only a question of how to go about achieving that objective."

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