Topic: Introduction of Bills that Strip Supreme Court Jurisdiction
Senator: Kohl
Date: SEPTEMBER 13, 2005
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KOHL: Judge Roberts, as you know, over the last two decades or so, there have been several bills introduced in Congress to strip the Supreme Court and all other federal courts of their jurisdiction over many issues. These bills are generally sponsored by people who are unhappy with various court decisions, including decisions on things like school prayer, remedies for school desegregation and even a woman's right to choose.
While you served in the Justice Department and in the White House Counsel's Office in the Reagan administration in the 1980s, you did state that you believed that bills stripping the court's jurisdiction were constitutionally permissible.
Do you still hold this view? Do you think it is the right way for us to go, to allow legislatures to strip your authority to review cases?
ROBERTS: I know the memos to which you are referring make the point -- answer to your second question -- I said that they were a bad idea. They were a bad policy. I had been asked earlier when I was -- back in 1981, I believe, when I was working in the attorney general's office, to present to him an affirmative case for the proposition that the proposals were constitutional.
He was getting an opinion that they were unconstitutional. He had to make that decision for the department's position. He wanted me to argue the other side. And I did. I prepared a memorandum presenting the best argument I could that these proposals were constitutional.
ROBERTS: The two memos to which you refer in the White House, where I suggested I thought they were, suggest that my memo persuaded me, if nobody else. The attorney general adopted, instead, the contrary position. And I think my views may have had something to do with the proximity to my own advocacy at the time.
As I say, I did say they were a bad policy. The reason I thought they were a bad policy is because they lead to a situation where there's arguable inconsistency and disuniformity in federal law.
If you don't have the Supreme Court with jurisdiction to address that, then you get different decisions and that was a -- that's bad policy.
If I were to look at the question today, to be honest with you, I don't know where I would come out. I think one of the questions I would have is whether these concerns I had that I labeled as policy concerns might more appropriately be considered legal arguments; in other words, not a policy dispute, but a legal argument.
That's the way the opinion of the Office of Legal Counsel that the attorney general agreed with viewed it. They said these -- the fact of disuniformity and inconsistency is a legal argument against the constitutionality. It's not simply a bad policy decision.
And I'm not sure where I would regard that determination today.
KOHL: Really?
Are you saying that you're not sure where you would come out if you were faced with the decision to go along with or to fight legislative attempts to take away the court's authority?
ROBERTS: Well, I don't think -- on the question of legislative attempts, I think my view is the same now as it was 24 years ago, which is that these are -- it's a bad idea. It's bad policy.
I was talking about the other question about whether it's constitutional or not. And on that, of course, I don't think I should express a determinative view because, as you know, these proposals do come up and one may be enacted.
And if that is the case, then I'd have to address that question on the court. It could be on the court I'm on now or another court.
KOHL: So in that case -- or in this case -- your heart might tell you that it's a bad idea; your mind might tell you it's constitutional?
ROBERTS: Well, I don't know what my mind would tell me.
KOHL: I mean, theoretically...
ROBERTS: But I feel comfortable with the conclusion, as I was 24 years ago, that it's a bad idea.
KOHL: All right.
ROBERTS: They're bad policy.
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