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August 06, 2005 08:00 AM UTC

John Roberts and Colorado's Amendment 2

  • 24 Comments
  • by: Colorado Pols

The Los Angeles Times dropped a rhetorical grenade on the debate over Supreme Court nominee John Roberts’ confirmation this week. Seemingly unbeknownst to the conservatives backing Roberts, he helped defeat the anti-gay Amendement 2 to  Colorado’s constitution when it was argued before the Supreme Court in 1995. Both sides insist it’s no big deal, which is only puzzling for a moment:

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.

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.

She said he gave her advice in two areas that were “absolutely crucial.”

“John Roberts…was just terrifically helpful in meeting with me and spending some time on the issue,” she said. “He seemed to be very fair-minded and very astute.”

Many social conservatives we know are quietly disturbed by this disclosure, which wasn’t part of a hefty pack of documents that reportedly included such things as Roberts’ membership at a neighborhood rec center. James “von SpongeDob” Dobson “expressed concern” over Roberts’ work in defense of gay rights, but has worked hard to downplay its significance. The right is so far invested in Roberts at this point that he’d have to get busted smoking crack with Marion Barry before they’d give him up.

Most on the left, especially the ad-hoc coalition headed by the National Abortion Rights Action League and People for the American Wayformed to challenge pretty much anybody Bush nominatedare worried that this  could weaken what they feel has been growing liberal opposition to Roberts.

The fact is that they’re both right: liberals probably have less to fear from Roberts than they’ve been working themselves up for, and the religious right may not be able to rely on him to carry out their agenda as they presently do with Antonin Scalia and Clarence Thomas. There’s a chance that Roberts just might interpret the Constitution impartially, which is what both sides claim they want. Previous Justices (like Sandra Day O’Connor) have notably failed to deliver what their would-be patrons expected, to the country’s benefit.

But with so many front groups flush with millions of dollars and determined to keep their talking points at sound-bite length, don’t look for anybody to admit it.

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24 thoughts on “John Roberts and Colorado’s Amendment 2”

  1. Congress (both sides) needs access to Roberts’ work as Deputy Solicitor General in order to really understand his thinking.

    Frankly, I am inclined to believe that on this issue, at least, Roberts stands with Bush’s private thinking and not his public words.  Bush has shown at least a benign apathy towards the gay issue in private, even though he was convinced to pronounce his support for the DMA in public.  Roberts may be of the same mold…

    On the specific issue of at least limited legality of late-term abortions (for mother’s health, etc.), Roberts’ “known” stance is that he’s in favor of a total ban; demanding that a woman die in favor of her unborn child is not rational, and does not show well for a Supreme Court nominee who is supposed to have a bright legal mind.  But what his internal writings on the issue were, we don’t know – perhaps he was in favor of a more moderate stance privately; without access to his SG files, we need to assume his writings reflect his beliefs.

    Similarly concerning are Roberts’ past ties to the Iran-Contra scandal and his heavy involvement in the 2000 recount.  Either Roberts shows extreme ambitions and is willing to enter into scandal and creative vote law interpretation to advance his career, or he truly believes in the things he has involved himself in.

    It is pretty obvious that Roberts is in favor of at least the corporate part of the Federalist Society agenda; this should also concern Democrats  and moderate Republicans deeply.

  2. John Roberts: Fair To Fags?

    I got this posting from my new favorite blog, Colorado Political News, but would like to share with my readers who may not typically care to keep up with politics.

    According to the LA Times,Supreme Court nominee John G. Roberts Jr. worked behind the sc

  3. Well, considering that Roberts isn’t in the Federalist Society, I find it weird that you’d bring up the Federalist Society “agenda”, but OK.

    It’s not reasonable to grade nominees for the SC on the basis of their political views: All people have political opinions, and all will upset others. What matters here is whether he’s capable of interpreting law on the basis of black-letter meaning and the author’s intent rather than his personal ideology, and the evidence so far indicates he’s quite capable in that respect. We need to refrain from politicizing the Supreme Court, because the Supreme Court’s apolitical nature was intended to be the major speedbump in keeping our government Constitutional.

  4. Roberts isn’t in the Federalist Society? Better tell them that…

    from the July 25, 2005 Washington Post
    “Roberts Listed in Federalist Society ’97-98 Directory”
    http://www.washingtonpost.com/wp-dyn/content/article/2005/07/24/AR2005072401201.html

    the Court’s apolitical nature? You yourself just said that all people have “political views”, judges included. The Court is made of people, people with political views, it is most certainly not apolitical in nature… it has always been political, from Marbury v. Madison to Bush v. Gore.

    “Strict constructionism” is as much a political perspective about the Constitition as the “living Constitution” philosophy is.

    I’ve held a pretty moderate line on Roberts, I’m not calling for his head or a fillibsuter but I had to comment on what you just said Aquaman because I don’t think you could be more wrong about the nature of the Court.

  5. Roberts isn’t in the Federalist Society? Better tell them that…

    Read your own article: He had an honorary title on a “steering committee” that didn’t require him to pay membership dues or even attend meetings. He’s been actively demanding corrections from every news entity that claimed he was a member for years. It’s a reasonable misunderstanding, but that simply isn’t membership or even active participation: They invite attorneys to take the title as an awareness thing. (Nice of the WaPo to leave that til the second page.)

    the Court’s apolitical nature? You yourself just said that all people have “political views”, judges included.

    Yes, and the absolute measure of our justice is that we put aside our personal prejudices to resolve cases with an eye towards fairness and consistency, rather than the arbitrary whim used in corrupt, primitive law. Therefore, a judge’s most important qualification is his ability to do that. If we wanted a political high court, we’d elect Supreme Court Justices. We don’t. The law says what it says, and a judge’s personal opinions on what the law “should” say should have no bearing on that reality. Presumably, you expect Washington Post reporters to write about Roberts in a manner that puts aside their personal biases, why can’t you imagine Roberts should do that as well?Your idea that the courts are political and should be is ludicrous: Our justice system would be (and, in the Ninth Circuit, often is) a total sham if every time we go to court, it’s anybody’s guess what article he read over the weekend that has changed his arbitrary personal feelings about the subject of the case. If we’re going to accept that judges can make the law mean whatever they think it should mean to fit the situation, we may as well go back to trial by combat, because at least you have a fair chance that way.

    “Strict constructionism” is as much a political perspective about the Constitition as the “living Constitution” philosophy is.

    Well, if you believe that words don’t mean things, then that might be true. However, they do. “Living constitution” philosophy is not a political perspective, it’s a way to cheat the democratic system when you’re mad because you can’t get anyone to *agree* with your political perspective. (Plenty of conservative factions are guilty of this, too.)We already have a mechanism by which we can change the law, and judges who we’re supposed to be able to trust to view the Constitution, the laws our elected representatives pass, and the Constitutional amendments ratified by our states with at least a modicum of respect and intellectual honesty. Why even bother to amend the Constitution (or, for that matter, why would the Founding Fathers have included a mechanism to do so) if we’re supposed to just let the courts make it mean whatever they suppose it ought to mean?

  6. Re: Federalist Society
    Here?s a quote by Elliot Mincberg of PFAW at a Federalist Society event on 9/9/03:

      Anybody who honestly believes that people like Miguel Estrada and John Roberts were selected solely because of merit without any view whatsoever about their points of view, their membership in the Federalist Society, other things, I have a bridge I would love to sell them.

    Re: “Your idea that the courts are political and should be is ludicrous”

    Well I never said that they should be so please stop putting words in my mouth. I merely pointed out that the Supreme Court is political and it always has acted politically, history is on my side of this argument. Should judges be able to remove the politics? Yes. Do they? Sometimes. I’m from the “reality based” community and think we should deal with the reality of how the Supreme Court actually functions. I don’t disagree with you in principle but the practice of the Court is entirely different.

    Re: the living constitution

    Please, my belief in the Living Constitution is no more or less a valid political perspective than Scalia’s belief in strict constructionism. You may disagree but to just outright dismiss my motives as merely seeking some way to subvert democracy is ludicrous.

    The Courts are a branch of our Republican governmemt, utilizing the court system is Constitutionaly legitimate.

    I’m heading to the mountains…. enjoy your day.

  7. Aquaman – its not nearly so black and white as “strict construction” vs. “political.”  There is no such thing as the “black letter meaning and the author’s intent.”  What’s the “black letter meaning” of “due process” or “liberty,” and whose intent?  There were many signers and a whole bunch of more people that voted to ratify. I’m willing to bet they wouldn’t all have agreed on what process would be due in circumstancces they never even contemplated, or exactly what should be included as a “liberty” protected by due process.  So there is a whole lot of area that gets filled in by the philosophies or whatever of individual judges, and precedent.

    That said, jurists should always look first for direction in the language of the Constitution and evidence of how it was understood by those who drafted and signed it.  Some do (Kennedy, O’Conner, the current liberals on the court).  Some seem not to (among whom I include not only Scalia and Thomas, but also Brennan and Marshall – as you aknowledgde, there are political-agenda driven judges on both sides).  The question is whether we have seen anything that indicates which camp Roberts will fall in.  Since he has spent so little time as a judge, we don’t, at least that I have seen (its no coincidence that Scalia and Thomas had the least time as judges before appointment of all current justices).

    Regardless, he’s certain to be confirmed, so there’s nothing to do but wait and see.

  8. Anybody who honestly believes that people like Miguel Estrada and John Roberts were selected solely because of merit without any view whatsoever about their points of view, their membership in the Federalist Society, other things, I have a bridge I would love to sell them.

    Yeah, judicial activism is a big part of our government these days. Should it be? Absolutely not.

    Well I never said that they should be so please stop putting words in my mouth.

    Fair enough.

    I’m from the “reality based” community and think we should deal with the reality of how the Supreme Court actually functions. I don’t disagree with you in principle but the practice of the Court is entirely different.

    Personally, I think we should hold the court and judges to the duties which are expected of them, and should make, you know, doing their job the #1 criteria for getting a promotion. I’m crazy like that.

    You may disagree but to just outright dismiss my motives as merely seeking some way to subvert democracy is ludicrous.

    I don’t think they’re your motives, but I’m saying they’re unavoidably the motives of the originators of the idea. Perhaps you can identify an alternative rational application for the philosophy then?

    The Courts are a branch of our Republican governmemt, utilizing the court system is Constitutionaly legitimate.

    Yes, provided the judges do their jobs. Otherwise, we’re Indonesia. As I said, at least in trial by combat, two professionals could actually apply their skills. In a political court system, why even bother with attorneys or preparing your pro se case if someone who actually understands the rule of law is going to be neutralized by a judge who happily usurps it (as the Supremes freely admitted to doing with the words “public use” in their barbarous Kelo ruling) to further their political worldview?The courts, however, aren’t a branch of our Republican government, or else Bush would get to pick them all. He doesn’t. He has to deal with an ongoing court based on continuity rather than the electoral process.

    I’m heading to the mountains…. enjoy your day.

    I have work to do or I’d join you.

  9. The court system as it stands today is most certainly a Republican branch of government.  All but one of the circuit courts are Republican-controlled, the Supreme Court is already Republican-leaning, and the District Courts – though I haven’t seen the numbers – are almost certainly aligned the same way.

    That is the consequence of holding up or denying such massive numbers of Clinton judges and then allowing Bush to confirm all but a couple of his…  How many justices are still around from the Carter days now?  And probably none from LBJ’s time…  That leaves Reagan, Reagan, Bush I, Clinton (blocked), Clinton (blocked), and Bush II.  How should we think the courts are aligned?

    As to the basis for the Living Constitution, it has its origins in not only Justice Marshall’s original fight over the role of the Court system, but also in the Founding Father’s ideas over the evolution of the Constitution.  Jefferson proposed an ideal perhaps most closely embodied in the New York State Constitution: periodic wholesale replacement.  What we wound up with is a document with some deliberately vague language and a purposely difficult amendment process.  IANAL, but I would argue that Chief Justice Marshall’s expansive power grab is also well within the views of the Founding Fathers, and it has held since the beginning of the Republic.

    It is the “strict constructionist” view that is new on the scene, not the view of a “living constitution”.

  10. I brought up Roberts’ support of the Federalist Society agenda because it is the easiest way I found to sum up the belief for the politically-oriented, not because of his debatable membership.

    He has not shown a deep interest in citizen’s rights over corporate rights in either his private or public practice, and that should be something that is investigated.  I believe it is the duty of the courts to uphold citizens rights, and it seems that the duty of those holding to the Federalist Society’s views are bound and determined to take us back to the No Minimum Wage days.  Roberts’ opinions seem to indicate he’s in the latter group.

  11. Where are the rightie Roberts warriors on this??

    Keeping their mouths shut, that’s what. That’s the most revealing thing in this thread for sure!

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