Roberts More Like Souter After All?

In today's newspaper is an intriguing report that John G. Roberts, Jr. assisted in the appellate preparations of the "good guys" in the 1996 landmark Supreme Court case of Romers vs Evans. Romer is an important case (6-3, Kennedy majority opinion with RehnquistScaliaThomas dissenting) because it made it clear that sexual minorities were no longer "a stranger to [the] law." In other words, for years, constitutional experts could look at numerous cases involving gay rights which clearly seemed to fall into the category of equal protection violations (i.e. treating this class of people, queers, differently--usually worse--than another class of people) but for some reason courts were loath to take that step. It was known as the "gay exception" to the Constitution. One egregious example is the 1986 Bowers vs Hardwick decision (5-4, O'Connor in majority, Powell the swing vote) which rejected a "fundamental right [to] homosexual sodomy" (even though Georgia's statute in question did not specify the sexual orientation of the participants). That decision was overturned in an even more landmark (6-3, Kennedy majority opinion) ruling, Lawrence vs Texas, in 2003.

Anywho, the idea that Bush's nominee to the Court actually participated in mock moot court oral arguments with Jean Dubofsky (who argued Romer before the USSC), playing the role of Scalia with gusto is velly interesting... Especially, since Roberts apparently "forgot" to list it as one of his pro bono activities in his 67-page written submission to questions from the Senate Judiciary Committee this week.

Methinks beads of sweat are starting to run down C. Boyden Gray's face....