The LA Times reports today that Supreme Court nominee John Roberts gave substantial behind-the-scenes assistance, pro bono, to the activists who asked the Supreme Court to overturn Colorado’s infamous "Amendment 2," which prohibited municipalities in Colorado from adopting any gay-friendly ordinances or policies. The case, Romer v. Evans, was the gay rights movement’s first significant victory in the Supreme Court, and undoubtedly paved the way for the more recent blockbuster decision of Lawrence v. Texas (which outlawed sodomy laws, and which was decided by the same 6-3 majority as Romer).
What to make of this? Is Roberts a clandestine agent of the dreaded "homosexual agenda"? Is he, in fact, secretly gay? (Perhaps that would explain his son’s controversial pastel clothing?)
Maybe. But more likely, he was doing his job. A partner at Roberts’s firm was working with the plaintiffs in Romer; the partner asked for Roberts’s help (Roberts was, after all, the firm’s best Supreme Court lawyer), and Roberts agreed. And having agreed, he gave it his all, reviewing briefs, preparing the lawyers for oral argument, and generally being "terrifically helpful." That is exactly what lawyers are supposed to do.
This is, in other words, an excellent illustration of how difficult it is to discern a lawyer’s views from his professional activities. I have no idea whether Roberts believed in his heart that the plaintiffs in Romer were right, any more than I have any idea whether Roberts believed in his heart that Roe v. Wade should be overturned, as was argued in the government’s brief in Rust v. Sullivan on which his name famously appeared. And I don’t think his participation in those cases tells us much about those questions.
I will say this, though. It is of course always open to a lawyer to decline to participate in a case because for whatever reason the lawyer cannot in good conscience represent the client’s interests in that case. The fact that Roberts agreed to participate in Romer at least suggests that he was not viscerally, fundamentally opposed to the pro-gay rights result that the plaintiffs sought in that case. And that, to me, suggests that he is not the ideologue that the Dobsonites want. (Can you imagine that, if the plaintiffs in a gay rights case had approached then-Professor Scalia for his assistance, he would have agreed to help out pro bono? I can’t.)
Roberts said on his Senate questionnaire that a judge must keep an open mind. Maybe he meant it.
UPDATE: The NYT quotes Walter Smith, the lawyer who handled Romer at Roberts’ firm and who asked Roberts to participate, as follows:
Every good lawyer knows that if there is something in his client’s cause that so personally offends you, morally, religiously, if it so offends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn’t take it on, and John wouldn’t have. So at a minimum he had no concerns that would rise to that level.
Exactly.
as a lawyer that has worked at a law firm that does pro bono, i can say that usually, at least at my firm, PRO BONO was optional, whereas regular work is not, meaning if a gay group was a paying client, Roberts MUST represent them regardless of his views, but typicall you only do PRO BONO for cases you personall believe in or want to help, since it is free.It may be that at his firm this wasnt the case, or he had to do it, , or he just helped to be nice and didnt personally believe in the cause.But since this was PRO BONO it raises some interesting questions? Souter II? who knows.
at least at my firm … if a gay group was a paying client, Roberts MUST represent them regardless of his viewsReally? Geez, tough firm. The law firms that I have worked at would never have required a lawyer to work on a case that he or she found objectionable as a matter of conscience, especially if the objection was religiously based. In any event, Roberts was high enough up the food chain at Hogan & Hartson that I cannot imagine anyone could have forced this case down his throat. Any firm in DC would have jumped at the chance to bring him on board, so the firm would never have done something to piss him off that much.
i guess alot would have to do with status. i was a first year lawyer at the time in a big firm, so if they told mo to defend an insurance company, i pretty much had to do it, obviously i COULD HAVE got out of it, but it would have been a bad career decision.The PRO BONO was encouraged but completely open, i.e., I people took on personal causes that needed help.Its interesting to see where this fits. Roberts was senior, so he probably wasnt forced.Seems like a good question to ask him, for republicans. i doubt they will.