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Roberts backed prayer in school, records show

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WASHINGTON — As a young government attorney, John Roberts advised the White House to support congressional efforts to allow school prayer, arguing that a Supreme Court ruling striking down the practice "seems indefensible."

In a Nov. 21, 1985, memo released Monday by the National Archives, Roberts was responding to a move by Congress to permit "group silent prayer or reflection in public schools." He said he would not object if Justice Department officials announced that President Reagan had no formal role in passing an amendment to that effect but said he would support such a move.

The Supreme Court's conclusion that "the Constitution prohibits such a moment of silent reflection — or even silent 'prayer' — seems indefensible," Roberts wrote in a memo to White House counsel Fred Fielding.

That material was part of nearly 50,000 pages of records related to Roberts when he served in the White House counsel's office. Before their release, the documents were reviewed by the National Archives staff to protect material deemed sensitive for national security, privacy and law enforcement reasons.

In all, 5,393 pages were released, covering the years Roberts served in the White House from 1982 to 1986. The Archives said Monday it had withheld another 478 pages, citing privacy concerns. It also did not release one folder involving "affirmative action correspondence," apparently because librarians had misplaced it.

Earlier, in a June 4, 1985 memo, Roberts argued that White House officials could exploit the Supreme Court's decision prohibiting school prayer. While justices struck down an Alabama statute mandating a one-minute moment of silence, "careful analysis shows" it was on technical grounds, he said.

Roberts said that a majority of justices would allow a similar law if it were worded more carefully to avoid expressing a religious purpose behind the measure.

The Alabama law was struck down because of the "peculiarities of the particular legislative history, not because of any inherent constitutional flaw in moment of silence statutes," Roberts wrote in a memo to Fielding regarding the Supreme Court decision in Wallace vs. Jaffree.

The material covered includes abortion, war powers of the president and the role of the Supreme Court in deciding social issues.

While many of the documents released during the day show Roberts at work drafting proposals for others, he offered a tart personal opinion on one point.

The justices on the Supreme Court, he wrote in 1983, "unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented."

"If the justices truly think they are overworked, the cure lies close at hand," he wrote at a time when Chief Justice Warren Burger was calling for creation of a new tier of appeals court.

He suggested the members of the Supreme Court abdicate the "role of fourth or fifth guesser in death penalty cases" to lighten their workload.

Other documents paint a picture of an attorney who was adept in handling requests from special interest groups in a politically sensitive manner.

In one Aug. 1, 1984 memo, Roberts writes that a group identifying itself as the "Small Committee for Richard M. Nixon" was appealing to Reagan to reinstate former President Nixon "to public life and grant him the respectable status that is due him."

Noting that Nixon's former staff had never heard of the group, Roberts advises Fielding that the "best course would seem to be a bland response" because Reagan is in no position to assist the already-pardoned former president.

Fielding eventually replied to the group that while Reagan can't do anything, "we do, however, appreciate having the benefit of your views."

The material was part of a written record involving Roberts' government service that have been identified in the Ronald Reagan Presidential Library. Some 4,864 pages had been released previously.

Senate confirmation hearings for Roberts, selected by President Bush to succeed the retiring Justice Sandra Day O'Connor, are scheduled to commence on Capitol Hill on Sept. 6.