John Roberts’s Refusal to Defend Federal Statutes in Metro Broadcasting v. FCC
on Sep 8, 2005 at 5:36 pm
The Washington post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. FCC. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because Kenneth Starr had a conflict.) In a post over at Balkinization today, I explain why the case raises very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes, and about why the unique circumstances of this particular refusal to defend a federal enactment might be very revealing of Judge Roberts’s personal views on the constitutionality of affirmative action — views that presumably are not shaped by any constitutional philosophy of original intent or of plain (or original) meaning.
