The fact that John Roberts did pro bono work in a gay rights case may be somewhat troubling to conservatives, but this might upset them more:
As a legal adviser to President Reagan, Supreme Court nominee John G. Roberts Jr. ... urged Reagan to stay out of an effort to post tributes to God in Kentucky schools....
In the Kentucky school case, Roberts advised Reagan to stay out of a 1985 effort to require teachers to post the national motto - "In God We Trust" - and the preamble to the state constitution in their classrooms. The preamble declares, "We, the people of the Commonwealth of Kentucky, are grateful to Almighty God for the civil, religious and political liberties we enjoy."
Supporters of the measure wanted Reagan's endorsement to help get it through Kentucky's legislature. At least one White House official seemed to support Reagan's involvement.
"The president's position concerning this issue is clear, and this group is certainly aware of it, but we would like to be sure that a message to them is approved by your office," White House aide Anita Bevacqua wrote in a May 17, 1985, memo to Roberts.
Roberts nixed the idea in his reply a week later. He questioned the constitutionality of the proposal and concluded that "it would be inappropriate" for Reagan to endorse it.
That's it. Roberts will now officially be declared the new Souter.
(Roberts also urged Reagan to distance himself from abortion-clinic bombers, but my reading of Free Republic and other right-wing sites tells me that these days most hardcore righties agree that bombing abortion clinics is bad; back in '86, by contrast, according to the linked story, "leaders from two anti-abortion groups, the American Life League and the Pro-Life Action League, were quoted as saying Reagan was open to the possibility of pardons on a case-by-case basis.")
On the other side, of course, the L.A. Times reports that
In 1991, Roberts personally argued a case along with lawyers for Operation Rescue. The protesters had been sued in Virginia over their abortion clinic blockades. The women who sued relied on the Ku Klux Klan Act of 1871, which made it illegal for a group to conspire to deprive individuals of their rights.
Roberts began by saying that he was not defending the actions of the protesters. Rather, he argued, the 19th century civil rights law did not apply to their conduct. The law only applied when people were singled out for discrimination, as blacks were by the Klan, Roberts said.
"Opposition to abortion is [not] the same as discrimination on the basis of gender," he said, adding that it was "wrong as a matter of law and logic" to make such a claim. In a 6-3 decision, the court agreed with his argument in an opinion written by Justice Antonin Scalia.
The fact that Roberts sided with Operation Rescue should assuage the right's fear that he might not be an apparatchik (even if he says he did so only as a matter of law). Then again, one deviation from Correct Thinking could be too much for the right, and in the Kentucky case and the gay-rights case we have two. So we'll see.