Defending a law that limits rights of a minority is not value-neutral advocacy

In “Defending Unpopular Positions Is What Lawyers Do” (Winter 2012), Paul Clement makes a claim (astonishingly echoed by Attorney General Eric Holder) that is as plainly wrong as it is self-serving. Claiming that representing Congress in its defense of DOMA is “not that different from representing Guantánamo detainees” fundamentally misunderstands the role of lawyer and intentionally draws a false equivalence. In Clement’s formulation, it is no more noble for a lawyer to represent Dred Scott or Oliver Brown than to represent Sandford or the Topeka Board of Education, nor should representing Sandford or Topeka be grounds for criticism. The principle that even unpopular people and ideas deserve legal advocacy stems from the idea that lawyers and courts must protect unpopular minorities from potential majority oppression. It is incoherent at best to argue that defending a law passed by a majority of Congress whose very purpose is limiting the rights of a historically unpopular minority is value-neutral advocacy and what “lawyers do when we’re at our best.”