SEX AND THE SUPREMES
by JEFFREY TOOBIN
Why the Court’s next big battle may be about gay rights.
Issue of 2005-08-01
Posted 2005-07-25

There have been occasions in the history of the Supreme Court when simple professional excellence, more than any grittier consideration, was enough to propel a lawyer onto the bench. Ethnic and geographic balance, as well as a measure of ideological suitability, played some part in, say, Herbert Hoover’s selection of Benjamin Nathan Cardozo, in 1932, or Dwight D. Eisenhower’s choice of John M. Harlan, in 1955, but it was possible, too, to see these nominations as ratifications of a national consensus about lawyerly credentials. George W. Bush’s designation of John G. Roberts, Jr., can be seen as following this tradition. Though he is only fifty years old, Roberts, who graduated magna cum laude from Harvard Law School, has been a clerk to two eminent judges (the late Henry J. Friendly, of the United States Court of Appeals in New York, and William Rehnquist, Roberts’s likely future colleague), a lawyer in the Reagan White House, Principal Deputy Solicitor General under the first President Bush, and a leading private lawyer before the Justices. Since 2003, he has served on the U.S. Court of Appeals for the District of Columbia Circuit.

But the transformation of the politics surrounding the Court suggests another, less noble reason for the President’s choice. Roberts’s shimmering résumé reveals everything except what really matters when one considers the potential impact of a Justice. More than ever before, the Supreme Court has become the national arbiter of cultural issues, and the last years of the Rehnquist Court have been characterized by a moderate consensus that has largely reflected the centrist views of the Justice whom Roberts would replace, Sandra Day O’Connor. On these issues Roberts has said little. When he was Deputy Solicitor General for the first President Bush, he argued for overturning Roe v. Wade, which legalized abortion. Yet in written responses during the confirmation hearings for the D.C. Circuit, in 2003, he said, “I do not believe that it is proper to infer a lawyer’s personal views from the positions that lawyer may advocate on behalf of a client in litigation.” He also described Roe as “binding precedent,” although a Supreme Court Justice is far less bound by precedent than any lower-court judge. (more…)

gay, gay rights, law, supreme court

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