'Fact Stripping' by the Associated Press

July 27th, 2005 9:51 PM

The Associated Press ran a story on 27 July, 2005, which demonstrates a gross misunderstanding of Judge Roberts position on legislation by Congress to reduce the jurisdiction of the federal courts.  The title of that article is "Under Reagan, Roberts Opposed Efforts to Strip Supreme Court Jurisdiction."

At the heart of the story is this paragraph:

"The issue of so-called court-stripping legislation crossed Roberts' desk while he worked at the Justice Department in 1982, when [Attorney General] Smith asked his young assistant to argue both sides of the case. The issue to be addressed was the constitutionality of a bill to strip the Supreme Court of its ability to rule on cases challenging voluntary school prayer legislation then pending in Congress."

First of all, it is common for staff attorneys to be asked to play Devil's advocate.  It literally means the subordinate should argue both sides of the case, which John Roberts did here.

The article concludes with this quote from Roberts when Edwin Meese was Attorney General, "I think I would recommend that we adhere to the old misguided opinion and let sleeping dogs (an apt reference, given my view of the opinion) lie."

The fatal error in the AP article is that it misreads the evidence, and then reaches a bad conclusion.  The writer misses the documentation of Roberts when serving in the Office of Solicitor General Ted Olson.  At that time, Roberts disagreed with Olson's conclusion that jurisdiction-limiting legislation was unconstitutional.  The AP writer confuses and conflates two questions.  The first is whether congressional limitations of court jurisdictions are constitutional.   The second is whether a given change in court jurisdiction is politically desirable and ought to be passed at a given time.

Article III, Section 1, provides, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  In the Aleska case concerning the building of the Alaska oil pipeline, Congress withdrew the jurisdiction of the federal courts over certain aspects of the pipeline, and the court subsequently recognized that authority and withdrew its own injunction against that construction.

In short, Judge Roberts has never varied one whit in his conclusion that this congressional power over court jurisdiction is constitutional.  Therefore, this AP story is false in suggesting otherwise.  It also betrays the bias of the reporter and editors in calling this "court stripping."  Would they call a bill to increase that jurisdiction a "court fattening" bill?  This story, through either bias or incompetence, muddies the waters on a critical issue, Judge Roberts' consistent dedication to enforcing the Constitution.

About the Author:
John Armor, Esq., has 32 years of experience in practice before the Supreme Court, and has taught, lectured and written extensively on constitutional law.  John_Armor@aya.yale.edu