Friendly fire.

The law, lawyers, and the court.
Aug. 11 2005 5:24 PM

Friendly Fire

How John Roberts differs from his hero and mentor.

Since his nomination to the Supreme Court, John Roberts' supporters have tried to cloak him in the robes of the judge for whom he first clerked: the legendary Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit. David Leitch, a former Bush deputy counsel and Roberts' law partner, told Newsweek that Roberts speaks of Friendly with "deep reverence" and "a certain twinkle in his eye." Richard Lazarus, Roberts' old roommate and a Democrat who now teaches at Georgetown, has said that Roberts "had deep respect for [Friendly's] intellect and approach to the law." And Stephen Barnett—another former Friendly clerk and deputy solicitor general—predicted that Roberts would drift toward Supreme Court moderate Stephen Breyer "as a conservative case-by-case pragmatist in the common-law mold, like Henry Friendly." Each invocation of the brilliant and principled Republican judge suggests that Roberts could become the same.

Comparing any judge to Henry Friendly is like comparing any basketball player to Michael Jordan. Writing in 1963, Justice Felix Frankfurter called Friendly the "best judge now writing opinions on the American scene." And, eulogizing him in 1986, judges Pierre Leval, then a Carter appointee to the district court (and now on the 2nd Circuit), and Richard Posner, a Reagan appointee to the appeals court, offered the same superlative assessments.

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It would be wonderful for America if a Justice Roberts followed in Judge Friendly's footsteps. But it seems unlikely. And a closer look at the two men suggests why.

On smarts and style alone, Roberts stands a better chance than most mortals of matching his extraordinary mentor. Friendly was president of the Harvard Law Review and is said to have compiled the best academic record in the school's history; Roberts was managing editor of the review and graduated with high honors. Roberts spent years representing corporate clients; Friendly spent three decades in private practice, co-founding a major law firm and serving as Pan Am's general counsel. Friendly combined a cutting intellect with an unyielding work ethic; Roberts built his formidable reputation as an oral advocate the same way, writing out hundreds of potential questions and answers for each argument. Friendly resisted the trend toward delegating work to clerks, writing his opinions for himself. Roberts reportedly does the same. Friendly was "completely free of the vanity and self-importance that are the occupational hazards … of judges," as Posner (and many others) remember him. By all accounts, Roberts shares the same admirable modesty. Friendly's opinions were no-nonsense exercises combining immense learning and relentless logic; Roberts' writing can demonstrate similar rigor, leavened by dry wit. (In one opinion, Roberts begins a footnote, "Not to chase down every rabbit spooked by the majority's alternative holding," then proceeds to crush the rabbit, finding a minor point and destroying it.)

But John Roberts has sometimes pressed Friendly into the service of agendas not exactly Friendly's own. Consider habeas corpus—the system by which lower federal courts review state convictions. In a famous law-review article, Friendly criticized the Warren Court's permissive rules and urged greater deference to decisions made by state judges. While in the Reagan Justice Department, Roberts circulated his own views on habeas, telling one superior that Friendly "would never have forgiven me if I remained mute." Roberts then quoted Friendly heavily and tracked his general perspective but went a significant step further, suggesting that the Constitution protects habeas corpus only in state—not federal—court, something Friendly had not contended. When Roberts sent Friendly a copy of DOJ habeas proposals containing similar invocations of Friendly, the judge expressed "general approval" but then commented on one sweeping provision, "Despite the flattering quotation, I think [it] goes too far."

As a federal judge on the D.C. Circuit court of appeals, Roberts has written 49 opinions, of which six quote Friendly. This is quite a tribute to a judge whose views are not even binding authority on Roberts' court. But some of the quotations rather strikingly miss Friendly's original point. In one case, Roberts concluded that companies bilking taxpayers and overcharging Amtrak could not be held liable because Amtrak is not technically the government. Slighting congressional committee reports to the contrary, Roberts quoted a Friendly essay to say that even a clear goal must be expressed "within the permissible limits of the language." This is a boilerplate sentiment—except, as fellow former Friendly clerk Judge Merrick Garland observed in dissent, the old boss had been making precisely the opposite point. Friendly's original quotation emphasized the need to use committee reports, not ignore them: "If an intent clearly expressed in committee reports is within the permissible limits of the language and no construction manifestly more reasonable suggests itself, a court does pretty well to read the statute to mean what the few legislators having the greatest concern with it said it meant to them."

The faithful Friendly follower would demonstrate an unyielding commitment to the logic of law, quite apart from politics or personal feeling. "Friendly was a conservative Republican, but that didn't determine his jurisprudence," Lazarus says. Harvard professor Todd Rakoff, another former Friendly clerk, recalled that Friendly's "passion was to solve, not to defend preconceptions." "What counted with Friendly, always, were legal arguments." As Friendly himself put it in the preface to Benchmarks, a 1967 collection of his essays: "The decider should cerebrate rather than emote about what he is deciding."

Friendly could reach results for which he had no small ideological antipathy. In a 1972 opinion, Friendly granted a convicted murderer's habeas corpus petition. The reader of the opinion can practically see Friendly hold his nose as he notes that, in granting the petition, he is necessarily rejecting the views of "thirteen New York judges who are quite as familiar as federal judges" with the governing law. But Friendly felt he needed to release the prisoner under the law, particularly a 1968 Supreme Court summary reversal. For this, Friendly himself was summarily reversed by a Supreme Court that had swung sharply rightward during Richard Nixon's first term.

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. Roberts' memoranda during the Reagan administration have painted a portrait of the lawyer as a young partisan. 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. Assailing activism to protect privacy while supporting activism to stop affirmative action may be standard fare for political conservatives and their judicial ilk, like Antonin Scalia. But it does not reflect the profound "cerebration" to which Roberts' mentor was so devoted.

The media have swooned over Roberts' more recent rhetoric of judicial restraint: "What it is not necessary to decide, it is necessary not to decide." But Roberts recently joined an opinion broadly but unnecessarily finding that President Bush may establish military tribunals without congressional authorization and without the rudiments of due process. Although Roberts has not recently addressed affirmative action, he has endorsed newer fashions in conservative activism. In 1999, Roberts praised a trio of Supreme Court cases limiting Congress' power to provide remedies for victims of state discrimination, calling them a "healthy reminder that we're a country that was formed by states." Yet these rulings have little grounding in the Constitution's text. And on the central issue of congressional power facing courts today—the extent of the Commerce Clause power—Roberts reached out, seeking, as judges rarely do, full circuit review of a panel holding in order to promote a narrow vision of congressional power that undermined the Endangered Species Act. In short, Roberts' views sometimes authorize judicial activism that threatens not only a now-famous "hapless toad," but also bedrock federal laws.

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