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.
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.