July 31, 2005

"Conservative Rigor"?

The NYT has a front-page piece today on the new Supreme Court nominee with a headline that really struck me: "Supreme Court Nominee Stood Out for Conservative Rigor." My instinctive response: Conservatives need to worry about whether this "conservative rigor" -- presumably, some sort of meticulous attention to precise, detailed analysis -- is going to produce the outcomes they like. There's absolutely no reason to think that a rigorous methodological style reliably produces outcomes political conservatives like. Judges can make a huge show of rigor and still come out with liberal decisions. David Souter does it all the time.

But let's look at the article:
"John's conservatism was in fact a sign of intellectual courage, coming out of Harvard and being surrounded by law clerks from mainly liberal, East Coast, Ivy institutions," said John A. Siliciano, a law professor at Cornell who clerked for Justice Thurgood Marshall at the same time.

His was "a very solid, rigorous, coherent view of very important social questions," Professor Siliciano said, "about the relations between courts and legislatures, about the relationship between the federal government and the state, between the public sphere and the private."

Yes, and what was that view?
"John certainly was in sync with his justice," said Paul M. Smith, who clerked for Justice Lewis F. Powell Jr. and is now a lawyer in Washington who frequently appears before the Supreme Court.

Got any details? Does that even mean anything more than that he dutifully did the assigned work or got along personally with Rehnquist?
[A]s far as Supreme Court terms go, Mr. Roberts served during a relatively routine one that included important cases on the First Amendment, federalism and sex discrimination, and ended with a notable affirmation of executive power.
That notable case was Dames & Moore v. Regan, which, the Times writes, "took an exceptionally deferential view of executive power." Hmm, yeah, but it also did what had to be done, from a completely pragmatic perspective (that is, leave in place the deal Jimmy Carter made with Iran to get the hostages released). It was virtually a unanimous decision, with only Jusice Powell partially dissenting. All the liberal justices joined Rehnquist's opinion. It is notable that Judge Roberts recently "accept[ed] the Bush administration's position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war," but it's not particularly interesting that he cited Dames & Moore. It's the standard precedent, not some special case he'd be especially attuned to because of his clerkship with Rehnquist.

Let's continue:
Few if any of the memorandums found so far from Mr. Roberts's clerkship shed much light on his political leanings. They are, if anything, concise and reliant on procedural points. ...

Most justices hired clerks who shared their views. But the Rehnquist clerks did not wear their politics on their sleeves, said Robert B. Knauss, a Los Angeles lawyer who also clerked for the justice that year.

"Frankly, the people that did were the liberal clerks, who were more out there, more aggressive, more, frankly, intolerant," Mr. Knauss said. "There were a few that were pretty aggressive that would try to come into the chambers and lobby you."
So this impression those other clerks expressed: where did it come from? What substance did it have? Was it mostly an inference based on their own aggressively liberal views? Where is this "conservative rigor" -- and what is it?

There are also the memos Roberts wrote as a clerk, which are available because Justice Blackmun allowed his papers to go public. But the Times finds nothing of substance worth mentioning: "Roberts's memorandums stand out as terse, lucid and even elegant." So, he's good on style. (And, really, why wouldn't everyone who gets a Supreme Court clerkship have a "terse, lucid and even elegant" writing style?)

Friends, despite the headline, there is absolutely nothing in this article that supports the prediction that Judge Roberts has a strong conservative political perspective on the substance of legal issues.


The Mojician said...

Paul Simon's line from "The Boxer" certainly seems to apply to the NY Times editors and/or headline writers: "A man hears what he wants to hear and disregards the rest."

Charlie (Colorado) said...

I don't know that I'm a conservative, or even a "conservative", but it would seem that rigor in drawing conclusions from the Constitution, previous decisions, and legal principles would be exactly what "originalists" and "strict constructionists" aspire to.

Ann Althouse said...

Charles: But Roberts has not proclaimed himself either an originalist or a strict constructionist, and his rigorouus methodology could very easily lead him to decisions that Bush and his constituents will hate. That doesn't make him wrong. It makes him admirable in my book. But I'm just pointing out something of interest to some folks that I happen to be in a good position to perceive and describe.

vnjagvet said...


I agree that pure "originalist" or "strict constructionist" methodology generally reduces the options for results oriented jurisprudence.

I am not sure that either social conservatives or social liberals who are not steeped in constitutional lore or law really understand that nicety.

Are there any good law review or other scholarly articles on this of which you are aware? If not, you ought to write one.

I think it would add immeasurably to better thinking on the judicial nomination process

Ann Althouse said...

Jim: Much as I enjoy being agreed with, you're agreeing with something I didn't say. I understand why you infer that, but in fact, I won't endorse the point you're making.

James d. said...

Headlines, sadly, have become a place to tell the reader what the article says so they don't have to read it, as opposed to luring the reader into the text. Most papers do it, and those that don't are probably kidding themselves into thinking the majority of the general reading audience is actually going to read the full text.

vnjagvet said...


Sorry. I apparently misunderstood your comment to Charles. Or at least I read something into it that you didn't intend.

It seems to me that if rigorous methodological legal analysis of whatever kind is applied consistently, it typically reduces results-oriented decision making.

For example, the "liberal" Felix Frankfurter consistently purported to apply his "judicial self restraint" analysis to scrutiny of social legislation and criminal procedure.

Generally because legislatures of his day were experimenting with "progressive" social legislation, his application of this analysis yielded results upholding these progressive experiments against constitutional challenge.

On the other hand, application of this analysis to criminal procedure sometimes upheld borderline police practices against constitutional challenge.

Because of his analytical procedural approach, by the fifties, Frankfurter was no longer considered by liberals a reliable vote in criminal cases. Moreover, as conservative legislatures initiated retrenchments from progressive legislation Frankfurter's vote became less than reliable for liberal challenges to such retrenchments.

This seems to me to be a similar phenomenon on the liberal side of the spectrum as you posited to Charles on the conservative side of the spectrum.

Did I miss something here?

Charlie (Colorado) said...

Ann, I'm a logician, not a lawyer. ("Dammit, Jim....") But it would seem to me that the specific complaint of the originalist or strict constructionsit position would have with the opposing position is that the reasoning of the results-oriented side fails in rigor. If this results in outcomes a conservative doesn't like, it would seem that's a point at which the conservative's particular position fails to be originalist or strict constructionist.

Charles said...

Hey, I think I am Charles... huh...

Anyway, just another reason to never nominate anyone with a record that will be traced down and over analyzed. Career bureaucrats-politicians-Washingtonians. Nominate a regular person with good sense who will do what they say they will do, but has nothing written or spoken specifically on a subject they will be questioned on. The Return of the Commonsense Citizens to government.

Charles said...

Hey, I think I am Charles... huh...

Anyway, just another reason to never nominate anyone with a record that will be traced down and over analyzed. Career bureaucrats-politicians-Washingtonians. Nominate a regular person with good sense who will do what they say they will do, but has nothing written or spoken specifically on a subject they will be questioned on. The Return of the Commonsense Citizens to government.

Scipio said...

All law clerks like citing to reported cases they worked on when they can. It's a good way to keep a case and a phrase alive.