John Roberts Internal Memo on the Role of the Courts and DOJ:
The National Archives has put up a page with a bunch of the more interesting internal DOJ memos John Roberts wrote as a young lawyer, and Chris Geidner has found one memo in particular that paints a fascinating picture of how Roberts views judicial decisionmaking and government institutions (or at least how he did when he was a young lawyer).

  The background of the 2/16/82 memo is that Roberts' boss, Attorney General William French Smith, was scheduled to give a speech to conservative groups. Roberts was tasked with coming up with ideas for how to respond to criticisms from conservatives that the Reagan DOJ was not conservative enough. The National Review and the Heritage Foundation had been criticizing DOJ for not not taking consistently conservative views in cases, and for helping to select Sandra Day O'Connor as a Supreme Court nominee. Roberts wrote a memo on possible responses to this criticism; in the course of the memo, he offers some interesting suggestions about the role of the Supreme Court and government more generally:
  A related criticism [conservatives have made about the Reagan DOJ] focuses on the screening and appointment of federal judges, highlighted by the O'Connor debate. The assertion is that appointees are not ideologically committed to the President's policies, again with particular emphasis on the social agenda.
  Here again I do not think we should respond with a "yes they are"; rather we should shift the debate and briefly touch on our judicial restraint themes (for which this audience should give us some credit). It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process — i.e., so long as they believe in judicial restraint. This theme has to be glossed somewhat, because of the platform, but we can make the point that much criticism of our appointees has been misdirected. Judges do not implement policy in the true conservative view of things, and the hot issues of today will not be those of ten or fifteen years hence, when our judges will be confronted with new social issues. Our appointments process therefore looks beyond a laundry list of personal views to ascertain if the candidate has a proper appreciation of the judicial role.
  We have been criticized [by conservative groups] for not following Reagan policy in the Grove City, North Haven, and ERA cases. Perhaps without naming specific cases, we can make the point that we must defend acts of Congress in the courts (ERA) and must enforce the laws as written, not rewriting them to comport with policy desires (Grove City, North Haven). This is the role of the Department in the constitutional system, and our conservativism believes in that system. Any other approach would be trying to use the courts to set policy, having policy set by the Executive rather than Congress (cf. Bob Jones), or inviting Congress or other intervenors to present the position of the United States in court.
  (emphasis in original)

  It's hard to read too much into this one memo, but to me it's consistent with the idea that Roberts is less a committed political conservative than a committed judicial conservative of the Harlan/Frankfurter school. If his views today are the same as they were in 1982, Roberts' conservatism is a conservatism that "believes in the system" of institutions, not one that pushes the law to reach conservative results. That's the sense I get from the memo, at least.
Will Baude (mail) (www):
Is it really the case that the department "must defend acts of Congress in the courts"? I had thought that if the president and the department agreed that an act of Congress was in fact unconstitutional that they shouldn't tell the Court otherwise. Obviously the personal views of DOJ employee do not automatically become the litigating position of the department of justice, but is the position of DOJ really supposed to be a "this is constitutional" rubber-stamp?
8.3.2005 1:01pm
John Steele (mail):
I think that may be the memo that Tribe discusses in the ACS Convention video, available at the ACS Blog. Tribe certainly discusses a "let's shift the debate" memo, and gives it a more sinister reading than I think it warrants.
8.3.2005 1:03pm
Ciarand Denlane (mail) (www):
Will, I think that DOJ "must defend the acts of Congress in the courts," is probably more or less correct in context, and not as much of an overstatement as one might think even if one broadens the context.

The Constitution obviously gives the political branches a great deal of leeway in making policy choices. In many instances, Congress gives the Executive discretion, but the policy choices Congress actually does make are the ones the Executive must carry out, rather than the ones the Executive would prefer. As Roberts put it in the remainder of the quoted sentence: the Executive "must enforce the laws as written" rather than rewrite "them to comport with the policy desires of the Executive." I think it was this kind of situation -- where the Executive's disagreement with an Act of Congress is a disagreement of policy rather than constitutional power --that Roberts' memo seems to be focusing on.

Where there is a question whether the statute is constitutional, then, with the exception I'll try to remember to address in the next paragraph, my understanding is that DOJ will ordinarily defend the statute unless there are no reasonable arguments that can be made in its defense. I'm not sure of the exact standard (it may be closer to "colorable" than "reasonable," e.g.). But the standard does not require DOJ to defend statutes only when it convinces itself that the "better view" is that the statute is constitutional or where it can predict that the Supreme Court's vote would be that the statute is constitutional. Obviously, the standard may vary somewhat depending on such factors as whether the decision is to defend a statute in district court or to seek cert. from a court of appeals decision adverse to the statute's constitutionality. It would be plausible that the standard would also vary with whether the Exective finds the statute's policy choices congenial, though my impression is that that has relatively (surprisingly?) little effect.

The exception I alluded to above is for statutes where the arguable constitutional defect is that Congress has invaded or otherwise diminished the authority or power of the Executive Branch itself. DOJ will be much less likely to defend such statutes, and may even affirmatively challenge them, even where the unconstitutionality of the statute is debatable.
8.3.2005 1:49pm
Will Baude (mail) (www):

I certainly hope that you are right about what Roberts meant. I had hoped that it was obvious that if the relevant decisionmakers at DOJ did not think an act was constitutional, they should not lie to the Court and say that it is.
8.3.2005 1:55pm
No One Special (mail):
You want "fun"? Wait until Roberts has to explain his other DOJ memos from the 1980's. Like the one where he argued that DOJ should silence small businesses standing up to the Federal government. He won that fight, and the small businesses lost the voice Congress had tried to give them.

(He was apparently the guy who argued in the 1980's that the premier conservative check on the Federal government's power to regulate businesses (the Regulatory Flexibility Act of 1980) was unconstitutional in part.)

There are a lot of strong RFA fans in Congress right now, because lately, it's been good for their constituents. I've run into a few folks who think Roberts stands a very good chance of having his "conservative" credentials burned on the table right in front of him on national t.v.
8.3.2005 2:23pm
If the relevant decisionmakers at the DOJ think an act is unconstitutional, but there is still some constitutional justification for the act, no matter how tenuous, they should argue that justification to the Court. Their job is not to pass judgment on the merits of the act - that responsibility lies with the Court alone, which should have the opportunity to hear the relevant arguments on both sides.
8.3.2005 2:26pm
42USC1983 (mail):
The SG has a duty to defend acts of Congress if they can make a straight-faced argument for its constitutionality. Starr addresses this in his book First Among Equals. Interestingly, then-General Olson did not defend the federal law at issue in in Tenn. Student Assistance Corp. v. Hood since it was widely understood that Congress could not abrogate under its Article 1 powers. He even appeared before Congress to tell them why. Ultimately, the Court still found a way to save the law. It'd make a great blog post (hint, hint) if someone is game.
8.3.2005 2:35pm
Michael Loatman:
and the hot issues of today will not be those of ten or fifteen years hence

Seems like Robert is right in some ways, but very wrong in other ways. I would say that abortion, gay rights, and religious symbols in the public arena have remained "hot issues" from the 1980s onward.
8.3.2005 3:29pm
Will Baude (mail) (www):
I haven't read Starr's book, but I will.

If the president agrees with the SG that an act of Congress is unconstitutional (even if they both can pretend otherwise with a straight face) what strange doctrine could require them to work to save the Constitution? And how would it jive with the President's oath "to the best of (his) Ability, preserve, protect and defend the Constitution of the United States"?
8.3.2005 3:29pm
M. Lederman (mail):
Actually, Ciarand is close to the mark. There is not, in fact, a DOJ "duty" to defend statutes where the Executive branch concludes that they are unconstitutional. There is, however, an established practice of DOJ generally defending the constitutionality of a statute when a reasonable or colorable argument can be made in its defense. (I add "generally" because there are historical exceptions (e.g., Metro Broadcasting), as well as other cases that don't fit the mold, such as separation-of-powers cases and sui generis cases such as Dickerson, in which the question is not whether the statute is constitutional as such, but instead whether the Court should adhere to stare decisis.)

How to reconcile these two statements? Well, as a general matter, the point is that DOJ attorneys should not take it upon themselves to argue that a statute is unconstitutional when the President has signed it and has (presumptively) concluded otherwise.

On the other hand, if the President concludes that a statute is unconstitutional, it is virtually always the case that DOJ will not defend its constitutionality. I know of only one case in which DOJ has defended the constitutionality of a statute after the President has concluded that it was unconstitutional -- Oregon v. Mitchell (and in that case, many defenders of the law complained that SG Griswold's defense at oral argument was too equivocal). Buckley v. Valeo provides another interesting counterexample. There, the President had expressed grave reservations about the constitutionality of FECA. SG Bork and AG Levi then filed two briefs in the SCOTUS -- an eighty-five page brief on behalf of the AG and FEC as parties, with a full-throated First Amendment defense of the contribution and expenditure limitations, and another brief on behalf of the AG as appellee and the United States as amicus curiae, presenting a distinctly different, ninety-five page discussion of the First Amendment issues in a manner that purported to "attempt to assist in analysis without pointing the way to particular conclusions," but which was in fact much more skeptical of the law's constitutionality. (These counterexamples are discussed in Seth Waxman, Defending Congress, 79 N.C.L.R. 1073 (2001).)
8.3.2005 3:36pm
Will Baude (mail) (www):
Many thanks! That seems much more sensible.
8.3.2005 4:49pm