July 20, 2005

Roberts and reasoning.

Here's an interesting assessment, by Harvard lawprof William Stuntz, of Bush's Supreme Court nominee. (That link will work for nonsubscribers to TNR.)
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....

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....
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.

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'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.
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.

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.


Sean said...

I think the more detailed criticism of Rehnquist is that since he became Chief Justice, his opinions have become much less detailed in their reasoning. I haven't done the kind of study myself that would be necessary to confirm or refute that criticism.

Ann Althouse said...

Virtually all of the opinions have become sickeningly long.

Bruce Hayden said...

One thought on why maybe they picked a litigator over a jurist (though he is one now) or an academic is that maybe they figure he will do better at the hearings.

Everyone is concentrating on how well he will do as a Justice. And, it would be somewhat in character for the Administration to go that route (given Bush's pick of Cheney as his running mate - as WY's three electoral votes were in his pocket anyway).

But very possibly, what is going through their heads is that if they get Roberts through first, others will be easier.

Which brings me to a theory on why Mr. Bush might have picked a very good litigator over a jurist or academic.

Academics on the one hand like to talk. They have a captive audience and there is little downside from talking too much. Judges too have a captive audience, and there is not a big downside to talking.

But litigators know that in their business, there is a downside to talking too much. Their best witnesses on cross don't say much more than yes, no, or I don't remember. Even when given a chance to speak, a good litigator will be careful about everything he says, knowing that a lot of cases are lost when a litigator says too much.

So, maybe, just maybe, the Administration has figured out that running a litigator through the confirmation process first will loosen things up for those who follow, and that they expect to have one or more follow shortly.

Ann Althouse said...

Bruce: And we all know the nominee who loved to talk too much was Bork.

Bruce Hayden said...

And then there is Justice Thomas. A lot on the right would love to have five of him on the bench.

Paraphrasing a little, but a generalized Thomas dissent might be: "There is right and wrong in the world. This is wrong. The majority is caught up in counting the angels on the head of a pin, and has lost sight of what is right."

An exageration, yes. And I really do like his opinions, and esp. his dissents - he often speaks from the heart.

We may actually get someone more like Thomas with Roberts, someone who, here, is used to making empassioned opening and closing arguments. But, as with my last post, we won't see this side of Roberts until he actually is sitting on the High Court.

Kevin S. said...
This comment has been removed by a blog administrator.
Kevin S. said...

Bruce said: "But litigators know that in their business, there is a downside to talking too much."

Very true. And I think the same is true with judicial opinions. There is a real downside to talking too much. I'm not talking about getting rid of reasoning; I am talking about making simple cases difficult, about filling the fereal reporters with dicta, about hortatory oratory. Lawyers who are litigators are less likely to fall into thiese traps as academics or policymakers.

Beldar said...

It's a mistake to infer that lawyers whose careers have been mostly as advocates are somehow less reflective than other types of lawyers. It's true that their public personas will probably reveal less angst, uncertainty, ambiguity, etc. But that ignores the other, private role that Roberts must have played as a counselor, not an advocate, for his clients. To be an effective counselor, you must be able to evaluate the strengths and weaknesses of both sides' positions in any given case. That you then only publicly argue one side's position definitely doesn't mean you're blind to counterarguments or that you're inflexible and dogmatic in private.

Beldar said...

Oh, and re long opinions: Check out (if you haven't already) Judge Roberts' panel opinion in the french fry case, Hedgepeth: only 18 pages in slip and 11 pages in the Federal Reporter (386 F.3d at 1148-59). This notwithstanding that he had to go through a fairly intricate mootness analysis before getting to equal protection; it wouldn't be unusual to see forty or fifty pages of sprawl on a case like this one. And the opening paragraph is absolutely classic.

Scipio said...

Long opinion disease is a real problem. When I worked on the illustrious Mississippi Court of Appeals as a law clerk, there was an unofficial rule that, since we were a court of limited appellate jurisdiction (mandatory workers compensation, otherwise whatever the Supremes felt was insufficiently sexy for their august considerations) and we could not "make" law, the opinions should be no longer than ten pages unless absolutely necessary. I don't think I ever worked on one that was, even in desperately fact-intensive inquiries.

The broader the ambit of the appellate jurisdiction, the more involved the opinion will become. And when your jurisdiction is almost entirely self-selected and your opinions compulsory consumption for people who run off at the mouth professionally, you can bet your sweet bippy you're writing for posterity (and thus for length).

If brevity be the sole of wit, oh Supremes, play on.

Scipio said...

I'm just going to pretend spelling soul sole in my previous post was a brilliant pun.