Glenn Roper is a senior attorney with the Pacific Legal Foundation. He previously worked as deputy associate counsel in the White House Counsel's office for President George W. Bush. This transcript has been edited for length and clarity.
Federal Newswire: What does the Pacific Legal Foundation do?
Roper: PLF is a public interest law firm. It's different from one of these big law firms that you go to, in that we provide legal services free of charge. That's because we only take a certain amount of cases or certain types of cases. We take cases that we think will be able to set valuable precedent and help us move the rule of law forward.
Federal Newswire: How many Supreme Court wins does PLF have?
Roper: We have 18 Supreme Court victories, really an unmatched record by any organization of our kind. Most law firms, even the big law firms that practice before the Supreme Court, aren't going to have that kind of record usually.
Federal Newswire: As a legal scholar and public interest litigator, how are you preparing for a potential post-Chevron world [relating to deference given to federal agency interpretations of laws]?
Roper: It's going to depend a little bit on what the court does. Does it abandon Chevron wholesale? Does it pare it back a little bit? We've got to be ready to bring appropriate cases and to give the court some direction as to what we think these laws mean. The fact that the court isn't deferring to the agencies anymore doesn't mean that the courts are going to be accurately or appropriately interpreting the law. We've got to be prepared to offer them interpretations and ways of interpreting the text that Congress has enacted that will actually follow the rule of law. We shouldn't get overly excited about the potential overturning of Chevron because you're still going to have the same individuals serving in these federal agencies. I think that highlights some of the importance of what we do at PLF. We've got to be prepared to bring cases against those agencies to push back on overreach. They're going to likely keep implementing the same kinds of policy, and they'll still need to be challenged. [If] the court were to overturn Chevron, that would take away one tool that the agencies have in pushing back against our lawsuits. But, they still have lots of other tools. The government has a lot of power and a lot of ways in which they get a thumb on the scale in the courts.
Federal Newswire: Can you talk about PLF’s work regarding public boards and the racial makeups on public boards?
Roper: States have a lot of regulatory boards. Most familiar would be state medical boards that license doctors. You have the same thing with dentists, and dozens of other professions, everything from accountants to podiatrists to cosmetologists. Our research scholars did a survey and found that about half the states have racial or gender requirements to say who the governor [must appoint]. Say the governor appoints ten people to the board. The law might say three of those people have to be racial minorities.We're now bringing challenges to some of these laws as violations of the Equal Protection Clause. In Iowa earlier this year we had a big victory. Iowa has what's called the judicial nominating commission, which is a state board that picks who's going to be on the court of appeals in the state. They had a law saying there has to be the same number of men and women on the board. It has to be divided exactly equally. Our client was a woman interested in being on the board because she happened to live in a district that was a “male” district. She was not able to be considered for the board because she wasn't the right gender.
Federal Newswire Is America still a “meritocracy”?
Roper: We're seeing this not just on public boards, [but also in] school admissions. That's an area where the issue of merit has really come up–the contrast between identity and merit. We've fought a number of these admissions cases where Asian students were being discriminated against because they were too successful [getting] into these schools. The Supreme Court addressed some of these cases in the Harvard decision last year. We brought a case for Thomas Jefferson High School, a very prestigious STEM school in Northern Virginia. Historically it's been rated as the best public high school in the country numerous times. Unfortunately, the school board there decided that there were too many Asians getting in, and so they decided to change the admissions policy to try to keep Asians out. We brought a lawsuit. We won in the district court. The Fourth Circuit reversed us. Unfortunately, the Supreme Court declined to hear our case. I think that was a big loss, and devastating for our clients. Certainly, schools do not have to focus on [only] merit. You don't have to try to be an elite university if you want to just be open to everyone. But, what you can't do is try to say we're going to be an elite university taking the best of the best, just focused on merit, and then also say we're going to look instead at these factors, such as race or these other immutable characteristics, and give people a bump from that.
Federal Newswire: What is the status of Hierholzer v. Guzman and the contracting issues associated with it?
Roper: Small businesses really are the backbone of the American economy in a lot of ways. The Small Business Administration is the federal agency responsible for regulating and promoting small businesses. They set up what's called the Business Development program where–particularly for needy businesses–they will provide some additional help. They'll set aside contracts for those businesses. They'll give them some business development training, and give them other kinds of perks to help promote those businesses. To get access to the program, you have to be what they call a socially and economically disadvantaged business. The basis of our challenge is that they're going to presume that you are socially disadvantaged if you fall into certain racial categories. If you're a black-owned business or a Hispanic-owned business, they will assume that you are disadvantaged, so you can get into the program. If you are a white-owned business, you don't get that presumption. You've got to prove to them that you're socially disadvantaged. Our client, Marty Hierholzer is a service disabled veteran. He was a deep-sea Navy diver for two decades. After he came back and retired from the Navy, he set up a business providing services for military contractors and for the VA. He wanted to take advantage of this business development program, but because he's white, he doesn't fall into the preferred racial categories. He didn't get it. He wasn't able to take advantage of the presumption, and they excluded him from the program. They said, “well, being a service disabled veteran, that's not enough of a disadvantage for us to let you in the program.” We brought a challenge under equal protection, saying the government can't do that. They can't just give people a leg up if they fall into certain racial categories, but not others. The district court unfortunately dismissed our challenge, so we're now on appeal to the Fourth Circuit. We filed our opening brief there and hope to have argument sometime in the next six months.
Federal Newswire: What is the Sabey case that PLF is working on?
Roper: This [case] highlights the breadth of our work in pushing back against government overreach of all kinds. The story here is so poignant, and highlights some of the concerns about the government not following the rules. Josh Sabey and his wife, Sarah, lived in Massachusetts. They had a three year old child, and they had a three month old child. The baby developed a fever one night, and they were pretty concerned about that as new parents, [so they] took the baby into the hospital with a 103- degree fever. They ran some tests and did an X-ray. They found that the infant had a healed broken rib…So they asked the parents, “Do you know what [happened]?” It was news to them—the first they'd heard of it. This prompted a child abuse investigation. They interviewed the parents, and that process was pretty traumatic. They brought their child in to try to get this fever taken care of, and it took a right-turn to this child abuse investigation. I think it's appropriate for the state when there's evidence or something like this for them to look into it. They called the pediatrician, and they interviewed the families. They even interviewed the three year old son, had them do all sorts of scans, found nothing else. There's no substance abuse in the home, no domestic violence, police have never been called there.
Eventually, they discharge them from the hospital. They said, “okay, you know, we're going to monitor you for the next couple of months…we'll check in every week, every couple of weeks.” That was a little annoying for the parents, but I think they understood. I haven't even gotten to the nightmare. Right now we're talking about some inconveniences. We're talking about this immediate suspicion that is cast on the parent [and] that's uncomfortable. You know, they are a little unhappy about it. They go home–things are fine.
Three days later, at 1 a.m., there's a knock at the door. Three armed policemen and two social workers say we're here to take your children. No warrant, no paperwork of any kind. There had been no advance notice. They've had several days in which they could have come and seen the children. In fact, they had visits to the home. But at 1AM, the police come up and say, “we're taking your children away.” Josh and Sarah… get a lawyer on the phone, but ultimately they're told, “give us your children or we're going to break the door down and come take them away.” Not knowing what else to do, at the threat of force, they relinquish their children, and they're driven away into the night. They don't know where they're going. They don't know how they're going to get them back. The courts are closed until Monday. They were eventually able to get the kids placed with the grandparents. Then they went through a multi-week investigation process, [and] court hearings. Once the state takes custody of your children, you then have the burden to try to prove that you should be able to get them back, and that requires more investigation. Hiring lawyers, [and then] going before the court and trying to prove that this suspicion of abuse is unfounded.
They were able to get temporary custody with supervision from child services. It was about a four month process to finally get full custody of their children. We're now representing Josh and Sarah. We've sued the state officials who were involved in this. Here it's the connection of the government abuse plus the property rights violation.
Your home is your castle, [and] for the government to come and breach your home as happened here, they've got to have a warrant. That's in the Fourth Amendment to the Constitution. There was nothing like that here. No paperwork, no warrant, nothing justifying what they did here. So we brought this lawsuit on behalf of the babies. [Josh and Sarah have] done a lot of interviews. They've been very willing to be open with the press about this. We're concerned about the people who don't have the resources that they did, who don't have fathers who are attorneys who understand somewhat how the legal system works. Most of the people who lose their children in this manner are poor. We’re hoping to make a change in policies shortly so that this kind of thing doesn't happen to others in the future.
Federal Newswire: To be representing plaintiffs who have been hurt in this way, is this why you got into law in the first place?
Roper: I've worked in private practice, I've been in government, I've done a lot of different things. I tell my wife, this is the happiest I've ever been practicing law because I personally believe in all the cases that I'm working on. That's a unique thing in litigation.
Federal Newswire How can people learn about the Pacific Legal Foundation?
Roper: Our website is www.Pacificlegal.org. We have over 100 cases in litigation. Property rights, separation of powers, equality, and we'd love to have people get engaged and learn about the work that we're doing.
