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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, August 23, 2005 ::
    Cody Herche at Legal Redux gives me a kind mention on the issue of Roberts and Romer.

    Having recently published here some dubitando material about Roberts, let me mention this about his involvement in Romer. There's a tendency to react to his five-hour moot-court participation as though it were tantamount to joining, if not writing, the actual opinion that came down in that case. This is an unwarranted leap, since the Court's opinion was broader than necessary. Not that I agree with this, but the Court could have viewed Amendment 2 as a strange new form of class legislation, void under Equal Protection without either heightened scrutiny or a finding of "animus."

    Is there a tape or transcript of that mooting session out there? If there is, and it surfaces, we'll really have something to pick apart. I expect it would show that Roberts did not at any point, directly or indirectly, suggest that counsel adopt as its theory of the case that the voters of Colorado are a bunch of bigots who can't act rationally even when (or who act irrationally especially when) deliberating over a state constitutional amendment. That's what the Court held, but I see no reason to think it's what Roberts coached counsel to say, and much reason to think it would be a very alien line of argument to him.

    :: David M. Wagner 4:27 PM [+] ::

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