Grasping at French Fries: Evaluating Judge Roberts

So much speculation has erupted throughout the blogosphere and in the mainstream media about what kind of Supreme Court Justice Judge Roberts will be. Some make mention of some of his statements in briefs and legal pleadings. Bernie Meyler (law, Cornell) guesting on PrawfsBlawg discusses a few sentences of his rhetoric in some opinions from his meager two years on the bench. And Kim Scheppele here at Balkinization looks to a case involving French fries on the DC metro. And then there’s talk about whether he was a member of the Federalist Society or not (he wasn’t, as Orin Kerr points out).

We’re really grasping at French fries, I think, to fuel our speculation over Judge Roberts. The only thing we can say for sure is that we have so extremely little to go on. Circuit court judges are bound by Supreme Court precedent, are also bound by the precedent of their circuit. So we don’t know much about how they’ll be when they’re unbound, when they grow comfortable in their Supreme Court robes. And advocates argue their clients’ positions, not their own, so we’ll never know if any of the statements he made as a lawyer were his own beliefs.

Certainly we can read the tiny opus of opinions Judge Roberts authored in his short stint as a judge. But it often takes time for judges to ripen on the bench, so even these will not be very telling. The short of it is that we just don’t know. And that’s what’s so frustrating.

Michael Dorf (law, Columbia) looks to whom Roberts chose to work for:

I doubt that President Bush directly sought from Roberts a commitment on particular issues, and as I share the general view of Roberts as a man of integrity, I am certain that if he were asked, he wouldn’t have provided such assurances. So how can movement conservatives be confident that Roberts will vote as one of them?

The short answer is that they cannot be wholly confident, but the longer answer is that they can take considerable comfort from the company Roberts keeps. He clerked for then-Associate Justice William Rehnquist when Rehnquist was clearly the Court’s most conservative member. He spent most of his career in the federal government, but only during Republican administrations. Thus, while Roberts is entitled to say that briefs he wrote, including those calling for the overruling of Roe, were in the service of a policy set by his political bosses, skeptics are equally entitled to ask why Roberts chose to work for these and not for other bosses.

But the fact that Roberts clerked for then-Justice Rehnquist doesn’t say all that much about what kind of justice he’ll be. Nor does the fact that Roberts worked in Republican administrations.

Perhaps the only thing we can be confident in is that the Bush Administration was not being cavalier about this appointment. I doubt anybody forgot about Justice Souter. So to the extent people are betting on what kind of Justice Judge Roberts will be, I’ll place my bet that the insiders selected a nominee who would be a reliable conservative vote on the Court. After all, I bet that they looked at more of Roberts’ French fries than any of us.

But in the end, who really knows? We just don’t have enough right now to go on.