We continue to learn more about John Roberts, and most of it's what you'd expect. He stood out as a conservative as a law clerk, he was an "eager combatant" in fights over civil rights and wrote derisively about the right to privacy as a young lawyer in the Reagan administration, and we're never going to see all of the documents that would shed light on Roberts' work in the solicitor general's office under the president's father.
But the Los Angeles Times is telling us something about Roberts we might not have expected: As a private lawyer, Roberts "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."
Roberts didn't write the briefs or appear at oral arguments in Romer v. Evans, the 1996 case in which a divided Supreme Court struck down a Colorado constitutional amendment that effectively prohibited the state or its political subdivisions from passing laws protecting gay men and lesbians from discrimination. But according to several lawyers who were involved in the case, Roberts was instrumental in reviewing filings and helping other lawyers prepare for oral arguments, the Times says.
Roberts didn't mention the gay rights case in the Senate Judiciary Committee hearing he completed earlier this week, and the Times doesn't say how it first learned of his work for the cause. Over at the Washington Monthly, Kevin Drum wonders how the story came to be. Did a supporter plant the story in order to placate liberals who fear that Roberts is another Scalia? Or did an opponent drop the dime to strike fear in Christianists who fear Roberts is another David Souter?
We can guess what we'll ultimately hear from Roberts on this issue: As a lawyer, it was his ethical duty to advocate on behalf of his clients. But lawyers as accomplished as he was can choose the clients they represent -- especially when it comes to the pro bono cases a lawyer takes on for free. So what does it tell us that Roberts worked in favor of gay rights a decade ago? We may not learn anything more during the confirmation process, but we may get a pretty good idea come Dec. 6. That's when the Supreme Court will hear oral arguments over whether Congress can deny federal funds to law schools that close their campuses to military recruiters in protest of "Don't ask, don't tell."