Roberts is a career litigator used to winning cases, not advancing theories--by all accounts intelligent, but without a reputation for flights of abstraction. He is less creative than Michael McConnell, another name often mentioned for the Supreme Court, but also more predictable than someone like McConnell, less likely to change his mind about premises and so end up with different conclusions....Stuntz posits that as a litigator, Roberts will care about outcomes not reasons, a style of behavior he says Rehnquist follows and Scalia does not. I'm sure many familiar with opinions written by Rehnquist and Scalia would argue with that characterization of both justices, but Stuntz asserts that Rehnquist is "famous for taking law clerks' opinion drafts and cutting out all the reasoning." I'm sure Stuntz has his sources, but I suspect that's a subjective assessment by some clerks who went to the Court after cranking out overlong, laboriously footnoted law review articles and then felt wounded when the Chief didn't appreciate all the perseveration.
Roberts has spent the bulk of his career--17 of the 24 years since he finished clerking--as a litigator, either for private clients or for the federal government. Unlike Justices Scalia, Ginsburg, and Breyer, he isn't a career intellectual. Unlike Justices O'Connor and Thomas, his background isn't in making government policy. Roberts has spent his working life trying to win cases, getting the right bottom lines for his clients. Nothing wrong with that: It's what good lawyers do, and Roberts was apparently a very good lawyer....
And as to Scalia, we're supposed to see him as a thorough intellectual, with a pure love of ideas?
Well, quite aside from those chacterizations, I'll agree with Stuntz that too much attention to outcomes is not proper judicial behavior. It is the mode of a politician, someone who's held accountable through democratic processes.
There isn't any comparable check on federal judges misusing their power. Which may be why federal judges, especially the ones who decide appeals, are supposed to give reasons for their bottom lines. The reasons are the check--they are the only thing that keeps judges from writing their own preferences into the law. Those theories that Justice Scalia loves so much are not just flights of fancy. They are the point of the exercise, the very reason the Court exists. The bottom lines should be an afterthought.I agree with Stuntz that the Senate ought to probe into the nominee's theories of judicial interpretation and to try to detect whether there is a judicial mind in there. A nominee who is really a political actor doesn't belong on the Court. But a blatantly political actor, once on the Court, given his excellent skills and the support of diligent law clerks, can generate the written materials needed to make the opinions look the way Stuntz would like to see them. More reasons, more carefully and voluminously laid out do not prove that the reasons came first and merely led to the outcome.
I'm not sure Roberts knows that; I am sure the confirmation process will do nothing to remind him. The politics of judicial selection and confirmation becomes more Rehnquistian--more about bottom lines--with every new appointment. Is he for abortion or against it? Does she like affirmative action or not? Results are everything. Reasons are an afterthought.
Overlong, ponderously supported outcomes make me suspicious that the judge is trying to cover up how result-oriented a decision is. It makes him look guilty, like the husband who comes home late and tells an elaborately detailed story about what he was out doing.