Memos may not hold Roberts's opinions

WASHINGTON -- Lawyers almost never speak for themselves. Private attorneys offer their clients' views. Justice Department lawyers carry out the president's policies. Trial judges follow precedents from higher courts. Even appeals-court judges usually incorporate their colleagues' thinking into their written opinions.

The problem of how to separate a judicial nominee's views from his employer's did not start with John G. Roberts Jr., whose thousands of pages of papers from his years in President Reagan's Justice Department have deluged the media in recent weeks. The question has hung over Supreme Court confirmation fights for decades, and the record suggests that anyone other than an academic has enough wiggle room to avoid being held responsible for his or her writings.

Roberts, who wrote memos attacking laws involving affirmative action, voting rights, and school prayer, probably was offering his own views to colleagues in the Reagan administration, according to people familiar with memo-writing procedures. But no one can be sure, and if any of the memos draws fire at his Senate confirmation hearings next month, Roberts can plausibly maintain that he was outlining Reagan's views, not his own.

The most dramatic example of a memo popping up to haunt a Supreme Court nominee was seen in 1971, when Roberts's mentor, Chief Justice William H. Rehnquist, was facing confirmation. Rehnquist was able to disown that memo with surprising ease.

Written almost two decades earlier when Rehnquist was a clerk to the late Supreme Court Justice Robert H. Jackson, the memo made a passionate case against ordering school desegregation. It supported allowing ''separate but equal" schools for blacks, as outlined in the 1896 case of Plessy v. Ferguson. While acknowledging that desegregation was a worthy goal, Rehnquist's memo foresaw legal chaos if the court declared that black children's due-process rights were violated by separate schools.

Rehnquist's memo concluded: ''I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed."

Jackson did not follow the views in the memo, joining a unanimous Supreme Court in Brown v. Board of Education in overruling the Plessy decision.

Nonetheless, when Democrats later confronted Rehnquist about the memo, Rehnquist said Jackson had asked him to write up Jackson's own evolving thoughts about desegregation, not Rehnquist's.

There was immediate skepticism about Rehnquist's assertions. According to an account in a book by a Georgetown University law professor, Mark Tushnet, Jackson's former secretary declared that Rehnquist had ''smeared the reputation of a great justice." Rehnquist acknowledged that he had never heard Jackson speak of having been excoriated by liberal colleagues. Rehnquist also acknowledged that he himself had defended Plessy v. Ferguson in sparring with fellow law clerks.

Tushnet, in an interview with the Globe, said subsequent research based on closer study of Jackson's views further suggests that the thoughts in the memo were Rehnquist's. President Nixon's counsel, John Dean, later acknowledged that he, too, had doubted Rehnquist.

But the Senate as a whole accepted Rehnquist's explanation. He was confirmed easily.

Tushnet, in an interview, said he believes all legal papers must be read in proper context. Lawyers' views cannot be obtained from briefs filed in connection with specific cases, because lawyers present the argument they believe the judge or justices will accept, not what the lawyers would advocate on their own. Roberts has made dozens of arguments before the Supreme Court, and Tushnet suggests they are not really instructive of his views.

But confidential memos to a client -- such as those Roberts authored in the Reagan Administration -- are more revealing, because clients ''hired you to help them think through tough problems, and you can say what you want, what you think," Tushnet said.

Still, even those views are tailored to the problem at hand and do not necessarily reflect the lawyer's thinking on a whole body of law.

The opaqueness of legal records is a major reason that so many justices over the years have surprised the presidents who appointed them. It is also why only Robert H. Bork, among nominees since Rehnquist, has been rejected by the Senate. Bork had spent much of his career in academia, inveighing against the Supreme Court in signed law-review articles.

After 34 years on the court, only Rehnquist knows for sure whether the views in the memo were his or Jackson's, and there is no reason to tell.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond.