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L.A. Times: Roberts worked on Romer v. Evans
Pro-life groups may be heartened by a Washington Times article today detailing another case of Supreme Court nominee John Roberts upsetting abortion-rights groups.

Weblog earlier noted that pro-life and conservative religious organizations are talking a lot less about Roe v. Wade these days than they are about 1965's Griswold v. Connecticut, which said the right to privacy made anti-contraception laws unconstitutional.

Documents released this week include one case where Roberts discussed Griswold. "All of us, for example, may heartily endorse a 'right to privacy,'" Roberts wrote. "That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice [Hugo] Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.'"

The Times quotes Karen Pearl, interim president of the Planned Parenthood Federation of America, as being "gravely concerned." "The draft article attacks the very bedrock of reproductive freedom," she said.

But so far no pro-family groups have responded to a front-page Los Angeles Times article that notes Roberts's involvement on behalf of gay-rights advocates in the landmark 1996 case Romer v. Evans—a Supreme Court decision widely lamented and criticized by religious conservatives.

Times reporter Richard Serrano writes that Roberts "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. … The lawyer who asked for Roberts's help on the case … said Roberts didn't hesitate. 'He said, Let's do it. And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job.'"

Among the things Roberts did to help was taking the role of "a Scalia-like justice" during a moot court panel to prepare for oral arguments. And indeed, he accurately predicted the questions Scalia would ask, the paper says.

So perhaps conservatives can take heart that Roberts can think like Scalia.

But does he? Serrano says the work doesn't mean that Roberts agrees with the Romer decision:

Roberts's work on behalf of gay-rights activists, whose cause is anathema to many conservatives, appears to illustrate his allegiance to the credo of the legal profession: to zealously represent the interests of the client, whoever it might be. There is no other record of Roberts being involved in gay-rights cases that would suggest his position on such issues. He has stressed, however, that a client's views are not necessarily shared by the lawyer who argues on his or her behalf.

Of course, that same logic means that you can't read too much into Roberts's writing on Griswold, either, since he did it as a Reagan administration lawyer.

Are Christian groups overconfident in thinking that Roberts agrees with them? Beliefnet's David Kuo, former special assistant to President Bush and deputy director of the White House Office of Faith-Based and Community Initiatives thinks so.

"Instead of being given a judge like Edith Jones or Michael McConnell or Janice Rodgers Brown who they know has a set jurisprudence like Scalia or Thomas, they are pinning their hopes on John Roberts in large part because their evangelical president has looked into Roberts' past, his heart, his mind, and his eyes and pronounced him the fulfillment of his promise," Kuo says. "It is a monumental leap of faith for them."

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August (Web-only) 2005, Vol. 49