WASHINGTON – Supreme Court nominee John G. Roberts Jr. advised Attorney General William French Smith in 1982 that “it is a comfortable fit, philosophically” to seek legislation barring the use of quotas to remedy inequities in the use of briefs or boxers in the military.
According to newly disclosed archival documents, Roberts sent a memo to Smith on March 15, 1982, recommending the enactment of an administration policy to prevent “the courts’ inappropriate involvement” in the distribution of men’s underwear in the three branches of the military.
“The use of a quota system for the distribution of men’s underwear—whether that quota is based on individual size, weight, vector, or the presence of foreskin—is clearly unconstitutional,” wrote Roberts, “as it deprives a recruit of freedom of choice.”
Roberts, who served as a special assistant to Attorney General Smith, advanced this opinion at a time when Jockey and Fruit of the Loom were rumored to be considering a lawsuit designed to force the Pentagon to ensure that briefs and boxers would be provided in equal number to inductees in the Army, Navy, and Air Force. The manufacturers, while not expressing a preference for either kind of underwear, wanted the distribution curve normalized, by judicial decree if necessary, in order to maximize profit projections.
Roberts argued that the courts should not be involved in legislating personal choices. He urged Smith to push for the enactment of legislation “guaranteeing that our policies of free choice cannot be undone easily.” Roberts also advised strengthening the practice of mediation—rather than litigation—as a means of “abating the influence of the courts.”
Friends and foes of Roberts’ nomination spun the briefs v. boxers memo to their own ends. Massachusetts’ Senator Ted Kennedy, a Big Dog boxers man, called Roberts’ memo “one more bird of prey in the civil equality bush.”
Utah’s Senator Orrin Hatch, a plain-white briefs man since the age of three, hailed Roberts’ determination “to keep the courts out of our drawers.”
Delaware’s Senator Joe Biden, who claims he hasn’t worn underwear since his freshman year in college, said Roberts has a moral obligation to “come clean with the American people regarding his own underwear preferences.”
In other news, Gwyneth Paltrow told Time magazine that Jennifer Aniston and Brad Pitt are “publicity whores, who would sell tickets to their own mothers’ funerals to get their names in the news.”
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