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Is John Roberts Another Henry Friendly?:
John Roberts, Robert Gordon, and I apparently have something in common: We all love Henry Friendly. Judge Friendly, who served on the Second Circuit Court of Appeals from 1959 to 1986, was a remarkably good judge who Roberts appears to admire greatly. In this piece over at Slate, Gordon (who clerked for a judge who clerked for Friendly) tries to make the case that John Roberts (who clerked for Friendly) probably won't follow in Judge Friendly's footsteps if confirmed to the Supreme Court.

  If I'm not mistaken, though, the evidence Gordon assembles is rather sparse. Gordon offers more reasons to think Roberts will resemble Friendly than reasons to think he won't. Granted, Gordon offers a number of grounds for believing that Roberts is a conservative. But as best I can tell, Gordon comes up with weak reasons to think that Roberts' views might be inconsistent with those of Judge Friendly. Here the four reasons he offers, in the order they appear in Slate:

  1. As a young lawyer, John Roberts wrote a memo on the role of habeas corpus that largely mirrored and heavily cited Friendly's views, but that contained a suggestion on one issue that Friendly apparently thought was incorrect. Roberts suggested in his memo that the right to habeas corpus could be suspended in federal court so long as it was available in state court, while Friendly apparently disagreed.

  2. On questions of statutory interpretation, Roberts may be more of a textualist that Friendly. Friendly was was more of a cautious purposivist than a textualist, and was willing to cite and rely on legislative history in some circumstances. In contrast, there is some evidence that Roberts appears to be less willing to cite legislative history. (Technically, Gordon makes this point in the course of noting that Roberts once cited Friendly out of context on a question of statutory interpretation, but I gather that the purpose of pointing that out is to touch on a possible difference in their approaches rather than to criticize Roberts for being overly eager to cite Friendly.)

  3. As a young political appointee in the Reagan Justice Department, Roberts wrote internal memos that appear more political and less judicious than Friendly's judicial opinions.

  4. Some of Friendly's notable opinions written during his 28 years as a judge reached liberal conclusions. In contrast, Roberts has not written any opinions in his two years that reached notably liberal outcomes.

  It seems to me that these four reasons form a rather weak basis for Gordon's claim. The first point seems doctrinally interesting but doesn't clearly indicate to me a major philosophical divide (although I should say that it's not my area, so it's possible that it does for reasons that aren't clear to me). The second seems to be mostly a reflection of changing views of statutory interpretation in the last fifty years. The third seems to be comparing apples and oranges, something that Gordon notes is a possibility. The fourth also compares apples and oranges, as it's hard to compare 28 years of Second Circuit opinions from the Warren and Burger Court era with two years' worth of DC Circuit opinions from the late Rehnquist Court period.

  Of course, no two people are the same, and it's always hard to compare one judge's views a half century ago to views of a different judge (especially as a young man) nominated for a different Court today. And it may be that Roberts is to the right of Friendly. At the same time, if those are the only reasons to think that Roberts is different from Friendly, I end up thinking it's more likely that they are unusually similar than that they are particularly different.
Jeff Cooper (mail) (www):
Trying to determine Judge Roberts's views by considering his admiration for a judge for whom he clerked strikes me as a fool's errand. My first clerkship was with a very liberal district court judge who, at the time, was a regular feeder to the Supreme Court. My immediate predecessor went on to clerk for Chief Justice Rehnquist; he is now serving as the United States Attorney for the Southern District of Illinois (a post to which President Bush nominated him last year) and has solid conservative credentials. I haven't seen or spoken with him in a number of years, but he always used to speak of the judge for whom we both clerked with "deep reverence" and "a certain twinkle in his eye," and I strongly suspect that he would do the same today. Yet I would not try to project his judicial philosophy, should he ultimately be nominated to the bench (as I expect he will), from his fondness for the judge for whom he first clerked.
8.12.2005 3:49pm
Eh Nonymous (mail) (www):
Nice post, and I like Jeff's comments.

Rorschach much?

Apples and oranges, too.

People see what they want to see, based on others' guileless reactions. Roberts idolized his judge. Well, duh. Roberts was political in a political office. Duh again. Lather, rinse, repeat.

People who claim to know Roberts' views on abortion or jurisprudence or federalism or homosexuality or anything else, based on his religion or his vital stats or his prior work, or anything at all other than what his opinions say and what he says about them, are probably reading tea leaves. And it's just tea, people. Tea.
8.12.2005 4:09pm
42USC1983 (mail):
You are much too charitable. That article was poorly reasoned. E.g., Mr. Gordon wrote: "John Roberts appears to differ from his hero in this sense: His views of the law seem sometimes to have bent to his personal politics, rather than vice versa." In support of this proposition he cites several examples, all of which are weak. I'll thus only look at two of them:

* "Roberts could not say enough about the 'the vital importance of judicial restraint in our democratic system, mocking the so-called 'right to privacy.' But during the very same period, Roberts, without irony, expressed admiration for a color-blind jurisprudence that would have sharply limited affirmative action."

Why is it a political move to support judicial restraint as to unenumerated rights (abortion), but not enumerated ones (equal protection)? Granted, I might not agree with this jurisprudential approach, but it does seem jurisprudential rather than political. What am I missing?

The good Mr. Gordon also cites Judge Roberts' toad dissent. Since when was enumerated powers in vogue? Now that Republicans are in power, limitations on their power are in disfavor. Yet Roberts would still (perhaps, we don't know) limit those powers. That seems like a principled jurisprudential move to me.

Of course, maybe I'm missing something. Help me out ...
8.13.2005 3:13am
Robert Gordon (mail):
Thanks to Orin Kerr for reading the Slate piece and taking the time to comment on it. I have posted a response here.
8.13.2005 12:38pm