Phi Beta Cons

Playing at the Law

It is possible that the name of John Roberts will live in ignominy for what he has done to this country and to the American people. Some, such as Attorney General Meese, have suggested that there is no way to vet a Supreme Court nominee so thoroughly that these kinds of Souter-like disasters can be avoided. But before he was nominated to the Court, Roberts’s record did offer clues that he is a man willing to play with legal arguments without necesssarily being guided by any higher principle. According to an article in Inside Higher Ed, Roberts “participated in discussions on preparing a brief, filed by a coalition of higher education associations, defending the use of affirmative action.” The following is from that article:

Sheldon E. Steinbach, vice president and general counsel of the American Council on Education, has worked with Roberts on many cases and praises him as someone with “a superior understanding, interest and knowledge about both K-12 and higher education.”

Steinbach said that Roberts helped in the discussions at Hogan & Hartson about an amicus brief that the ACE organized on behalf of dozens of higher education groups in defense of affirmative action. The brief — strongly supportive of affirmative action — was filed in two Supreme Court cases, decided in 2003, about admissions policies at the University of Michigan.

“I don’t know what his stand is on affirmative action. But I do know that he played a role in the amicus brief” and that his “intellectual firepower” strengthened the arguments, Steinbach said.

We can’t know at this point what this means for the affirmative action case that is on the Supreme Court docket for the fall, Fisher v University of Texas.