Roberts Confirmation Hearing III
Bill Long 9/13/05
Finishing on Roberts' Stories
If the first story was one in which he expressed admiration for and desire to emulate Justice Jackson, this story expresses sympathy for Lincoln but also a distaste for judicial overreaching. Overreaching, for Roberts, consists of deciding more than you are asked to decide in any one case. Dred Scott was disastrous for the country because the Court decided more than it had to decide and thus provided a "very difficult problem in terms of adherence to the decision." Roberts, in fact, could have drawn a slightly different message from Dred Scott, and that is that judicial overreaching tends to undercut the Court's authority and even its legitimacy in a democracy. But Roberts chose to emphasize the (unspecified) disaster which results when judges decide more than the one case that is on their plates.
If you take the chance to read some of Roberts' briefs filed on behalf of private clients in the US Supreme Court between 1994-2002 (he was in private practice from 1993-2003; the briefs are difficult to obtain but are posted on Westlaw, for example), you see that Roberts pays scrupulous attention to the "Question Presented"--i.e., the precise question that the Supreme Court said would be the basis of its decision. In fact, a clever and minimalist reading of this question in one instance enabled him to win a case in which he was argued the most liberal position he ever presented before the Court. If the example of Justice Jackson teaches him the importance of judicial independence and deciding questions from his new vantage place on the Court, the Dred Scott case convinces him of the need to pay close attention only to the precise issue at hand in a case.
Story 3: Judge Henry Friendly
After finishing law school at Harvard in the late 1970s, Roberts had successive one-year clerkships with Judge Henry Friendly of the 2nd Circuit Court of Appeals (New York) and then-Justice William Rehnquist of the US Supreme Court. He spoke of his admiration for Friendly in response to Senator John Kyl's (R-AZ) question.
"With Judge Friendly, it was--he had such a total commitment to excellence in his craft, at every stage of the process. Just a total devotion to the rule of law and the confidence that if you just worked hard enough at it, you'd come up with the right answers. And it was his devotion to the rule of law that he took the most pleasure in. He liked the fact that the editorialists of the day couldn't decide whether he was a liberal or conservative. And he would be chastised for the same opinion, depending on which paper had read it, as either that conservative judge or that liberal judge. And because he wasn't adhering to a political ideology, he was adhering to the rule of law."
Notice three things about how Roberts articulates his memory of Friendly. First, Friendly was a tireless worker in law. He was utterly devoted to the rule of law, and would "work" his opinions until they came out "right." Second, Friendly took pleasure in every aspect of the judicial life and craft. If Roberts had taken time to enumerate all the stages, he no doubt could have done so: how Friendly set up an office, read a case from below, studied a brief, listened to oral arguments, began to craft an opinion, discussed his approach with colleagues, decided that he was being faithful to the law. As Roberts goes on to say, so thorough and clear was he that you can read Friendly's opinions today and get the sense that he is guiding you on a complete tour through a significant area of law. Finally, Roberts stresses, again, the independence of Friendly. No one knew whether to characterize him as a judical conservative or liberal. Editorial writers disagreed. But, that didn't matter to Friendly because he was being faithful to his larger calling in life: the rule of law.
Note how themes of independence and respect only for the rule of law (rather than adherence to a judicial philosophy, a school of thought, a party's "agenda") fill his thoughts. His fear is an overreaching judiciary. His models are men who knew how to assume very different roles over a long career or who were utterly committed to the craft of law. I was greatly impressed in studying several of Judge Roberts' briefs and writing about them on my "Legal Essays" page, that the kind of clarity of expression and detailed attention to aspects of the legal craft, as he must have learned them from Judge Friendly, were very much in evidence. I think we ought to be ready to see some of the independence which Jackson's life represents. But, because of his commitment to a judiciary that only decides cases before it, I wouldn't anticipate one would see very dramatic departures from what might be called the center of the law. Yet, his facile writing style and careful attention to facts and procedural history of cases indicates to me that as he inches law along, it certainly won't be a boring read.
Copyright © 2004-2007 William R. Long