Pictured Ruth Harlow ( Lambda Legal ) and Paul Smith ( Jenner & Block ) , after oral arguments on Lawrence v. Texas. Photo by Bob Roehr
Paul M. Smith is an openly gay lawyer who argued and won the landmark 2003 case of Lawrence v. Texas in which the U.S. Supreme Court struck down the remaining state sodomy laws. He also has a personal and professional history with Supreme Court nominee John G. Roberts that extends back more than 25 years.
Smith offered his unique perspective on GLBT issues and on Roberts in this exclusive interview.
The two first met through a mutual friend while in law school. Smith was at Yale where he served as editor in chief of the Yale Law Journal, while Roberts was at Harvard, serving as managing editor of the Harvard Law Review. Their paths crossed more frequently in 1979 when they clerked for different judges on the U.S. Court of Appeals for the Second Circuit, which is based in New York City.
The following year both moved to Washington, to clerk for Justices on the U.S. Supreme Court; Smith for Lewis F. Powell, Jr., Roberts for William H. Rehnquist. The 32 young attorneys who served as clerks that year had frequent contact both in the course of their work, over lunch, and in other activities such as the fierce basketball games played on the Court's court.
'He was pretty conservative when he was a young guy. Where he is now, after a quarter century of mellowing and being, a real lawyers' lawyer, as he has been, and representing the clients who came in the door, as we saw with Romer, I'm not sure I know how to judge that.'
Smith was not out at the time, in fact, he would marry a woman and only later come to terms with his homosexuality. So, he cautions, the experience says nothing about how Roberts interacted professionally and socially with a gay man.
Smith and Roberts stayed in Washington, both practicing in the small field of appellate law, both rising to leading roles in prominent law firms.
'He was a very nice guy, and certainly remains that,' Smith said. 'So it does not surprise me that he stepped up and helped Jean Dubofsky' when the attorney was preparing to argue Romer v. Evans, the first important gay-rights case. The Court threw out Colorado's Amendment Two as discriminating against gays.
Such collegiality is common among the small fraternity of those who argue cases before the U.S. Supreme Court. 'Perhaps the most that you can say is that he isn't one of those people who found it so offensive [ to help gays ] that he couldn't do it. He clearly isn't one of those, he's a lawyer.'
Smith became involved with the Lawrence case through a more junior member of his firm, Jenner & Block, and started working with Lambda Legal in writing the appeal to the Supreme Court. As the time approached for oral arguments, Lambda decided to go with the attorney with more experienced before the Court and asked Smith to argue the case.
'It was not like any other argument that I have given at the Supreme Court. The sense of the historic importance of the occasion was palpable,' Smith recalls.
He was somewhat surprised by the broad rather than more narrowly tailored decision when it came down. 'There was this sense that this was one of those cases of a generation. Justice Anthony Kennedy is the kind of writer that rises to the occasion in those situations, to write more than just the mundane lawyer's prose.'
Smith says he never discussed the case or the decision with Roberts; their paths have diverged over the years.
While there is little question that the nominee is a conservative, that philosophical tent covers many shapes and forms. Smith hopes the Senate Judiciary Committee delves into Roberts' constitutional philosophy—whether it is 'originalism,' an approach favored by Justice Antonin Scalia that draws heavily from the text of the constitution; the more flexible 'living Constitution' that some other conservatives embrace; or another version of legal conservatism.
He also would press on the issue of stare decisis, the principle that you do not overrule precedents with which you might not agree. 'And, whether or not he believes there are any limits on the government that are not expressly set forth in the Bill of Rights,' that can be deduced from the structure of government. That becomes important in the area of privacy, which is not specified in the Constitution.
Smith describes himself as a political 'progressive' who has worked for Democratic clients on reapportionment cases. He joins in the broad praise of Roberts, saying, 'I think that John will do very well … . He's very self-assured. He has this personality that makes everybody want to like him. He gets up in front of the court and is tough minded, he is firm, but at the same time, not in a way that puts anybody off.'
'He started from a position that was quite conservative, as the memos all show. But I'm not sure there is really any way to extrapolate from that with any degree of confidence about whether he would overrule things that he might not have agreed with originally.'
'He is one of the most respected members of the Bar in this city. He will be a very important Justice, however he turns out in terms of some of these votes that everybody is trying to predict. He will be a leader of the Court because of his personality and because of his intellect. It is a historically significant appointment, but it will be years before we know how much of a change of direction it will ultimately be.'
