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August 04, 2005

John Roberts: Gay-Rights Crusader

According to The LA Times, John Roberts did a fair bit of pro-bono work for a gay-rights group, and was instrumental in helping them win their case:

Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.

Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm's pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.

Later on, the reporter recounts how Roberts went so far as to play Scalia before the group, peppering them with their archenemy's likely questions and teaching them how to parry, feint, and win. Kevin Drum is interested in the meta-story here. Why'd the reporter write this? Who gave it to him? Is he trying to please the left or enrage the right?

I'm not.

I'm more interested in Roberts, and the "why" of all this. It's one thing to protest your lawyerly inscrutability when you were counsel for the Bush administration or billing by the hour, but is the guy really such an intellectual jouster that he'd arm a gay rights group before a showdown with serious consequences for public policy just for fun? If so, what does that say about him?

This is pro bono work -- it's free. He chooses whether or not to do it. And, while I'm no lawyer, I can say with some certainty that you'd probably not find me donating my off-time to some Christian Right judicial group and their quest to get the court to toss evolution out of schools. If you believe in something, or against something, you don't take time away from your hobbies to help out the other side.

So say what you will about Roberts, the lawyer's lawyer, but the guy's total detachment from his convictions makes him a strange beast. Beyond gay rights, he did pro-bono work for someone convicted of Medicare fraud and in favor of 1,000 former welfare recipients -- whom he called "the neediest people in Washington -- who lost benefits during a budget crisis. The guy's sympathies, which Republicans keep assuring themselves are unknowable, are better labeled contradictory.

I don't know who John Roberts is. I suspect none of us do. But what's clear is that, however far he is to the other side, he's loathe to let convictions get in the way of a good argument. And that may be just as true when he's arguing the case as judging it.

August 4, 2005 in The Supreme Court | Permalink


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Easy. He knew he'd be Supreme Court Justice one day and wanted to throw future liberals off the scent. The Dobson crowd knows the game; they're receiving the secret sign behind the curtain as we speak.

No, I don't know.

Posted by: Brad Plumer | Aug 4, 2005 1:12:29 PM

Why'd the reporter write this? ... Is he trying to please the left or enrage the right?

Err, do you really believe reporters think like this? Really, most of the time we're just trying to tell a story, get at the truth...

Posted by: derek rose | Aug 4, 2005 1:50:37 PM

Okay, now that I've had a chance to read the story, this seems like a complete non-issue to me. Roberts' firm took up the case pro bono, a colleague who was handling the case asked Roberts for assistance, and Roberts pitched in as was "expected" of him (see further down in the piece). But he wasn't the chief litigator here, and it's pretty clear that Roberts didn't push the firm to take up the case or anything of that sort. Mainly, he was sought out be a colleague in need of assistance precisely because Roberts knew what sort of arguments might best sway a conservative court.

So yeah, my guess is that the source for this story is someone trying to stir up (baseless) discontent with Roberts among the religious right.

Posted by: Brad Plumer | Aug 4, 2005 2:30:00 PM

You're missing the cultural context here. The pro bono effort for the swindler was done at the request of the Chief Justice of the Supreme Court. Accepting those kinds of requests is a good idea if you want to remain in good standing for future appointments, e.g. to the Supreme Court. It doesn't mean he liked his client.

The gay rights case was a law firm effort (Hogan & Hartson is a mostly liberal firm with a significant Reoublican minority), and Roberts got roped in to help out his colleagues on an issue they cared about. Again, there were interesting legal issues that are probably more fun than the usual corporate work. The intellectual challenge of pretending to be Scalia porbably appealed to Roberts also. He may also have believed at the time that it would be helpful infuture conrimfation tohave something liked that on his resume. It's completely credible that he assisted on a case he did not personally believe in.

Posted by: arthur | Aug 4, 2005 2:56:29 PM

I hope the take-home message from this isn't "John Roberts is desperate for some way to live out his Scalia fantasies, even if it requires him to get in strange positions with gay people."

Posted by: Neil the Ethical Werewolf | Aug 4, 2005 3:06:36 PM

I'm more ready to believe that Roberts is not a consistent ideologue on the full range of far-right issues (ala Grover Norquist), but more a ardent believer in a (very) conservative view of government in general and judicial interpretation in specific.

But, although none of us here knows 'his heart', you can bet someone does, and he passed the BushCo tests, whatever they are, so some indication is therefore given us that he's probably more like Rehnquist and Scalia (but not like Thomas) than Souter.

BushCo would not make the call for Roberts if he was going to turn out like Souter, ruining many years of spadework in the far-right base of the Repub. party.

Posted by: JimPortlandOR | Aug 4, 2005 3:20:38 PM

"Really, most of the time we're just trying to tell a story, get at the truth..."

Sure, but the motivations of a source, on the other hand....

Posted by: Gary Farber | Aug 4, 2005 4:44:02 PM

So, does that make Roberts Homo Pro Bono?

Hey, when I think of who ALGORE would have appointed, presumably a Ginsburg clone, almost anyone looks good! I'm counting my blessings!!

Posted by: Fred Jones | Aug 4, 2005 5:26:13 PM

Pro bono work for the welfare recipients would be consistent with his religious beliefs, if not necessarily consistent with our beliefs about conservatives.

Posted by: J Bean | Aug 4, 2005 9:17:16 PM

"Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.

"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights.""

"immediately" and "everybody". You come to DC to argue a gay rights case and Robert's name flies to mind? This sounds a little more significant than Roberts just getting pulled in for an assist for a colleague. It sounds more like he took it on and farmed it out, with him remaining influential behind the scenes. The subtext is pretty clear, but I'll leave it for discussions elsewhere. Tell you this though, Freepers are freaking.

Posted by: Bruce Webb | Aug 5, 2005 3:13:39 AM

It is standard practice in any reputable firm to "moot" (that is, practice) an appellate court argument, having experienced attorneys play-act the judges. You want lawyers who know the judges to play the parts - they're more likely to predict the questions you're going to be asked. On a big case, you'll moot it several times, trying to anticipate different ways the argument might go. That's all that happened here. His partners asked him to help and he did. It would have been very rude of him to refuse. You can't tell anything about his personal views from this.

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