The National Archives last week announced that it would release today 5,383 pages from the records of the Staff Member Office Files of John G. Roberts Files, 1982-1986. Included in these papers (which have been released but are not available online) are two memos on school prayer written by Supreme Court nominee John G. Roberts when he Associate Counsel to the President in the Reagan White House. Bloomberg News reports on much of the text of the memos. The Washington Post quotes other portions of them.
On June 4, 1985, the day the decision was released, Roberts sent White House Counsel Fred Fielding a memo analyzing the Supreme Court decision in Wallace v. Jaffree . He pointed out that the Court found that lawmakers who sponsored Alabama's moment of silence law had an express purpose to return voluntary prayer to schools. Roberts wrote: "The statute was thus struck down because of the peculiarities of the particular legislative history, not because of any inherent constitutional flaw in moment-of-silence statutes." Roberts also wrote that despite the Court's conclusion, "careful analysis shows at least a majority of the justices would vote to uphold a simple moment of silence statute." He went on to speculate that "the outcome of this case shifted in the writing." He said he thought Justice William Rehnquist had started out writing a majority opinion to uphold the law, but his argument went too far for Justices Sandra Day O'Connor and Lewis Powell, both of whom ended up filing concurring opinions. Roberts continued: "Thus, as I see it, Rehnquist took a tenuous five-person majority and ... ended up losing the majority."
In a November 21, 1985 memo to White House Counsel Fred Fielding, Roberts suggested that the White House could expect the Justice Department to support a Constitutional amendment permitting silent prayer in public schools. He wrote: "I would have no objection to such a position statement. Many who do not support prayer in school support a 'moment of silence'." Analyzing the Supreme Court's holding in Wallace v. Jaffree, he said that its conclusion "that the Constitution prohibits such a moment of silent reflection --or even 'silent prayer''-- seems indefensible.''
