Washington – Supreme Court nominee John Roberts worked behind the scenes for a coalition of gay-rights activists in a Colorado case, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.
Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay activists as part of his law firm’s pro bono work.
While he did not write the legal briefs or argue the case before the Supreme Court, he was instrumental in reviewing the filings and preparing oral arguments, according to several lawyers intimately involved in the case. He was instrumental in helping Jean Dubofsky, the lead lawyer in the case and a former Colorado Supreme Court justice, as she prepared to argue the case before the U.S. Supreme Court.
The coalition won its case, 6-3, in what gay activists described at the time as the movement’s most important legal victory. The three dissenting justices were those to whom Roberts is frequently likened for their conservative ideology – Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas.
Roberts’ role working on behalf of gay 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.
Roberts did not mention his work on the gay-rights case in his 67-page response to a Senate Judiciary Committee questionnaire released Tuesday. The committee asked for “specific instances” in which he had performed pro bono work, how he had fulfilled those responsibilities and the amount of time he had devoted to them.
But former colleague Walter Smith said Wednesday that was probably just an oversight because Roberts was not the chief litigator in Romer vs. Evans, which struck down a voter-approved 1992 Colorado initiative, Amendment 2, that would have let employers and landlords exclude gays from jobs and housing.
Dubofsky said she came to Washington to prepare for the Supreme Court presentation and immediately was referred to Roberts. She said he gave her advice in two “absolutely crucial” areas.
“He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case,” she said.
She said Roberts served on a moot-court panel as they prepared for oral arguments in the case, taking the role of a Scalia- like justice in peppering her with tough questions. And when Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower court ruling. “I had it right there at my fingertips,” she said.
Dubofsky said Roberts helped her form the argument that the initiative was illegal because it violated the equal-protection clause of the Constitution.
The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May, throwing out the Colorado law.
In his answers to the Senate questionnaire, Roberts talked more generally about his volunteer work. He said he participated in a program sponsored by the National Association of Attorneys General to “help prepare representatives of state and local governments to argue before the Supreme Court.”
He also said he has worked with high school and college students and teachers “who are studying the legal system and the Supreme Court.” And he said he has “actively participated on a pro bono basis in efforts to achieve legal reform.”
