y colleagues at The New Republic were reassured by John Roberts's performance before the Senate Judiciary Committee, and urged that he be confirmed. They quoted with approval Roberts's statement, "I do not have an overarching judicial philosophy," and added, "It is impossible to imagine Antonin Scalia or Clarence Thomas uttering those words." Well, yes, that's certainly true now, but Thomas made many statements of that kind during his 1991 confirmation hearings, assuring the members of the Judiciary Committee, for instance, that he would "retain an open mind" and not be influenced by "political theory."

TNR's Legal Affairs Editor Jeffrey Rosen, from whom I've learned much over the years, went even further in backing Roberts. Democrats, Rosen wrote, should not listen to "the siren song of ideological interest groups" and should "vote to confirm Roberts as chief justice with gratitude and relief." Rosen based his case primarily on the fact that Roberts does not subscribe to the "constitution in exile" view of libertarians, who believe the court since 1937 has given government regulation a free ride. That's an important point about Roberts--and one that he reinforced during the hearings--but it cannot be the sole, or even primary, consideration in estimating what kind of contribution he would make to the Court.

What's disturbing about Roberts is his consistent opposition, when serving as a Reagan administration official, to the rulings and legislation inspired by the civil rights revolution of the 1950s and '60s. These affect the rights of African Americans, Hispanics, women, immigrants, and the handicapped. Roberts voiced this opposition two decades ago, but in the Senate hearings, he refused to repudiate the positions he took; and from what is known of his activities as acting and deputy solicitor general in the George H.W. Bush administration, he generally continued to adhere to them. Roberts, of course, is unlikely to have to rule over the next decades on the validity of Title IX or the advisability of school busing for desegregation, but the underlying social conflicts that spawned these issues will continue to haunt the country and the court.  

oberts came to the Reagan administration during a critical period in the debate over civil rights. The Republican upsurge that began in 1968 and climaxed in Reagan's 1980 landslide was in good measure a reaction to Supreme Court rulings on race, religion, crime, and abortion, and to the Civil Rights Act of 1964 and the Voting Rights Act of 1965. This backlash accounted for the movement of many white voters out of the Democratic Party and into the GOP. But as their party took control of the White House and Senate, Republicans were at odds over whether to continue to exploit this backlash. North Carolina Senator Jesse Helms and future Reagan official Pat Buchanan were all for it; Senator Bob Dole, Congressman Jack Kemp, and some neoconservatives wanted the party to reclaim the legacy of Lincoln. They clashed over symbolic questions--such as whether to make Martin Luther King's birthday a national holiday--but also over important legislative and judicial issues, including the renewal of the Voting Rights Act and the application of the civil rights acts.

Within the Reagan administration, which was itself divided over these issues, Roberts consistently took the hardline position on civil rights, even dissenting from his own conservative superiors. As his memos make clear, he wanted to limit the federal courts' ability to enforce school desegregation; he was eager to fatally weaken Title VI and Title IX, which forbade discrimination by institutions that receive federal money; he advocated requiring the plaintiffs in voting rights suits not simply to demonstrate that a city or state's laws prevented minority candidates from being elected, but to prove that particular individuals had designed those laws expressly for that purpose; he equated affirmative action with quotas; and he suggested that the Equal Employment Opportunity Commission was "un-American."

In taking these positions, Roberts was, of course, opposing liberal civil rights groups, but he was also opposing conservatives within his own party and administration. Bob Dole and Indiana Senator Dan Quayle led the fight in the Senate to make clear that plaintiffs in voting rights suits had only to show discriminatory results. Several times, Roberts even clashed with William Bradford Reynolds, the hardline head of the Civil Rights Division of the Justice Department. In 1982, Roberts protested Reynolds's decision to intervene on behalf of women prisoners in a Kentucky jail whose conditions, as a district court later ruled, were "markedly inferior" to those of the male prisoners.

One area in which Roberts clashed with other conservatives is of particular relevance now: Roberts appears to have had a Buchananite view of immigration. In a 1983 memo to his White House superior Fred Fielding, he disagreed with the administration's opposition to requiring a national identification card. "I think we can ill afford to cling to symbolism in the face of the real threat to our social fabric posed by uncontrolled immigration," Roberts wrote. Earlier, Roberts wrote a memorandum sharply criticizing the Reagan administration's solicitor general for not defending before the Supreme Court a Texas statute that denied funds to school districts that permitted the children of illegal immigrants to attend class. In this landmark case, Plyler v. Doe, the court ruled that these children were entitled to an education under the Fourteenth Amendment's equal protection clause.

n the Judiciary Committee hearings, Roberts, who is well practiced in public relations, took two different strategies in fending off questions about his past positions. First, he insisted that in taking these positions, he was not spelling out his own beliefs but acting as a "staff attorney" for the administration, articulating what he took to be its positions. Any fair reading of these memos would rebut that claim. When Roberts claimed to be representing administration opinion, it was to reinforce his own position against that of another administration member. And in many cases, he simply said outright that he disagreed with the administration stance.

Roberts wrote Fielding about the national identification card: "I recognize our office is on record in opposition to a secure national identifier, and I will be ever alert to defend that position. I should point out, however, that I disagree with it." In another memo to Fielding, he disputed what he acknowledged to be "the administration view" on a bill restricting federal courts from enforcing school desegregation. Regarding the voting rights bill, Roberts took the administration position, but did so even more vigorously and enthusiastically than other officials. In one memo he stated, "Brad Reynolds has expressed some reservation about circulating any written statement on the question to the Hill. My own view is that something must be done."

Roberts's other strategy was to respond to questions about his past positions by restating what the court had ruled on the subject, while hinting or asserting that he would not move to overturn the ruling. When Senator Ted Kennedy pressed him on whether he still agreed with his earlier position on the Voting Rights Act, he acted as if he were being asked whether he would declare it unconstitutional. "I am not aware," he said, "of any constitutional challenge that has been brought to Section 2 since it was enacted. I've not--and I have no basis for viewing it as constitutionally suspect and I don't."

When Senator Richard Durbin asked him whether he had changed his position on Plyler v. Doe, he said, "I haven't looked at the decision in Plyler v. Doe in 23 years, Senator." When pressed again by Durbin, he said finally, "The decision in Plyler is a precedent of the court. I don't think--I'm not aware that it's been called into question in the intervening 23 years that have passed since the time I wrote those two paragraphs in the memo, and that is a precedent which is entitled to respect under principles of stare decisis." A respect for precedent is important (although Roberts's promises in this respect must be put alongside Thomas's similar pledges in his confirmation hearings) but Durbin wasn't trying to find out whether Roberts would overturn Plyler v. Doe. He wanted to know what Roberts thinks about the issue, and what he would likely do if presented with a similar but not identical case in the future.  

n an essay for The New York Times Magazine, Rosen laid down some guidelines for what senators on the Judiciary Committee should ask Roberts, urging them to focus on what Roberts might do in the future rather than what he had done in the past. When Roberts's mentor William Rehnquist came up for confirmation before the Senate Judiciary Committee, Rosen argued, the senators were wrong to focus on a memorandum Rehnquist wrote in 1952, while serving as a clerk for Justice Robert Jackson, defending Plessy v. Ferguson's ruling on separate but equal schools. (Rehnquist claimed incredibly in 1971 that he wrote the memo to articulate the views of Jackson, who backed Brown v. Board of Education.) The senators would have been better served, Rosen wrote, by asking him about "the issue that would come to define the Rehnquist court--the relationship between the federal and state government." Similarly, Rosen advised today's senators to examine how Roberts might rule on such matters as digital copyrighting, reproductive cloning, and racial identification through DNA.

Rosen is wrong, I think, about Rehnquist and Roberts. As it turned out, Rehnquist's segregationist opinions--including his advice to Barry Goldwater in 1964 to oppose the Civil Rights Act--were an important gauge of how he would vote on a whole range of civil rights decisions--from Bakke in 1978 to Grutter v. Bollinger and Gratz v. Bollinger in 2003. During this time, Rehnquist diverged from what his earlier memo suggested only once--in a case about women's admission to the Virginia Military Institute. These were important cases. And Rehnquist's segregationist past was also a good indicator that he would uphold states' rights in judicial decisions. In the '50s and '60s, when Rehnquist was writing his memo to Jackson and advising Goldwater, support for segregation was inextricably bound up with support for states' rights.

Civil rights issues have been, and will be, central to the Court. In a constitutional democracy, there is always the potential for conflict between the popular democratic will and the higher principles of a constitution. And in America, the most fundamental of these conflicts--those that have led to war and massive protest--have been generated by the fact that our nation, while committed constitutionally to liberty and equality, was built upon a legacy of slavery (in the case of African Americans) and conquest (in the case of American Indians and Mexicans).

The conflicts generated by this history have never been fully resolved, and probably won't be over the next century. They'll clearly take different forms than in the past. They may concern immigrant Latinos more than African Americans, and new kinds of onerous voting requirements rather than the poll tax or the lynch mob. But they will command the attention of America and its courts. It was important to know more about Roberts's views on voting rights and cases like Plyler v. Doe. And from the little the Senate learned, there is good reason to be worried about, rather than grateful for, his elevation to our highest court.