SCOTUS: Why Judge Roberts' Paper Trail May Be Longer Than You Think

(Disclaimer: It isn’t my usual policy to express my opinions here, except to the extent that I have an opinion on a case that I’m covering. But this is a question I’ve been thinking about since the Roberts nomination and I haven’t seen anyway else discuss it.)

As everyone knows by now, the President has nominated John G. Roberts, Jr., to be the newest Associate Justice of the Supreme Court. In the coming confirmation process, Judge Roberts will be scrutinized in almost every way possible: the media, special interest groups, and Senators will pore over his anonymously-signed law school Note alongside every other article he’s ever penned, every brief and opinion he’s ever written, every speech he’s ever given, not to mention every cause he’s ever worked for, every club he’s ever joined, and every penny he’s ever spent. They’re going to turn the man’s life upside down to make sure that he’s a suitable nominee, whatever that means. And that’s fine by me -- it’s the way the advice and consent process has come to work, and I have no objection to it. (Although, by all accounts, Judge Roberts seems like a model nominee).

What won’t be seriously (or at least publicly) scrutinized, however, are the opinions written by Judge Friendly and Justice Rehnquist when Roberts clerked for them. And my question is, why not?

It’s Article III’s dirty little secret that law clerks write most opinions. Even the giants of the bench -- the judges known for their singular style and intelligence -- use clerks to draft their opinions. Judge Alex Kozinski, one of the most distinctive writers in the federal judiciary (who has acknowledged that he doesn’t draft his own opinions), notes that "[i]t is a reality of current judicial life that few judges draft their own opinions from scratch," and that some circulated opinions "look like they were written by someone a year out of law school with no adult supervision."

Now, no one would accuse Judge Friendly or Justice Rehnquist of being so absent.* But the fact remains: in the vast majority of cases, the clerk who drafts an opinion has a profound impact on the way a case is decided, has a singular familiarity with that case, and is likely the only person who has considered the import of each and every word written.

I suggest that the opinions a clerk drafts are just as important in gaining insight into his behavior as a judge as anything else -- probably more so. To name just one, consider Dames & Moore v. Regan, a case decided by Justice Rehnquist when Judge Roberts clerked for him.** Dames is a critical executive powers case in which the Court upheld President Carter’s power to use "blocking orders" against foreign assets in connection with the Iranian hostage crisis. Harkening back to Justice Jackson’s famous concurrence in the Steel Seizures Case, Rehnquist presumed the constitutionality of Carter’s orders, writing, "[b]ecause the President’s action . . . was taken pursuant to specific constitutional authorization, it is supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Similar reasoning was used by, for example, the Hamdan panel that approved of military tribunals earlier this month; Judge Roberts was on the panel. Justice Rehnquist also wrote the Court’s decision in important antitrust, patent, Fourth Amendment, and sovereign immunity cases while Roberts was there.

Why doesn’t anyone look into this stuff? (Or do they, and I just haven’t seen it?) Is everyone just buying into and propagating the myth that judicial decisions are written by judges, and ignoring the important input that clerks have? How come no one even talks about this stuff?

* I note, for what it’s worth, that Judge Friendly was Senior by the time Roberts clerked for him, and died only six years later after suffering from failing health and declining eyesight. I have no reason to believe that Judge Friendly was anything other than lucid and brilliant to the end, however.

** I, of course, have no idea whether and to what extent Judge Roberts worked on this case.

Comments

[Chris]

During Breyer's confirmation hearing, there was some discussion about Justice Goldberg's concurrence in Griswold, which Breyer was rumored to have worked on as a clerk.

[Friendly Hand]

I believe Judge Friendly drafted his own opinions, Posner style. His clerks might add a comma here or there, but he really didn't use them for opinion writing as most judges now do.

[Happy Fun Lawyer]

Even when he was 75, ill, and going blind?

[S.cotus]

Well, I think using a dicaphone counts as writing it yourself.

[Happy Fun Lawyer]

Certainly it does; is that what Judge Friendly did, or is that just speculation? If it's fact, then that makes te Friendly opinions less important. Anyway, it's the SCOTUS opinions that are of greater interest.

And, incidentally, if Senate Democrats are going to ask for Roberts' memos at the DOJ and White House, why aren't they also asking for his bench memos?

[s.cotus]

That is pure speculation on my part. However, I have known some judges to dicate their opinions from hospital beds.

As for me, I think that his bench memos are privileged. Likewise, his work at the SG is probably privileged but the law isn't quite settled on this. Unlike some other nominees with similar resumes, his “client” (that is the elder Bush's administration) may have waived a lot of their privileges, by putting part of the memos in the presidential library.

I expect that there will be a big fight over this stuff. And, although I would err on the side of non-disclosure, I think that since the current administration isn't taking the “advise and consent” thing too seriously, Congress should do all it can to figure out if this guy is good. Personally, I think he should be confirmed, but that doesn't have much to do with my analysis.