Tuesday, August 16, 2005

Predictive Utility, sure: but what are we predicting?

The debate is old hat by this point: how good a guide is John Robert's record as an attorney at predicting what kind of decisions he will make as a Supreme Court Justice?

Specifically, do we interpret his record as an attorney to be a function simply and entirely of advocating on behalf of his clients or instead to reflect his own convictions? Jason Spitalnick argues that, while specific arguments Roberts has made reflect only his commitment to his clients, the more general arc of Roberts' career provides significant evidence of his conservative inclinations. He characterizes Roberts' career choices as therefore having predictive utility. Yes, his career "predicts" that Roberts is a conservative, surprising as that may be. Count me enlightened on that conundrum.

Spitalnick's post doesn't address the interesting question at all -- can we read his earlier work for clients as indicative of his position on particular legal questions? I have the same answer as everyone on this: yes, no, maybe. In other words, the relationship between Roberts' client-service work and his future legal judgments can only be considered on a case-by-case basis. The only general truth we get from this line of inquiry is Spitalnick's trivial one.

That is to ask about the substance of Roberts' legal opinions. But substance, in any one case, depends on the method by which a judge considers the legal questions before her. The more independent variable is, therefore, jurisprudence, procedural inclinations. John Roberts has apparently changed over the course of his career in the way he talks (and therefore thinks?) about the process of reaching legal decisions. Recently, according to the LA Times, he has
said that “deciding cases was a lot harder than I thought it would be,” and that “I’ve found that I have to spend far more time than I thought I would just getting to that first step—what the right answer should be.” He also stated that he often finds himself changing his mind as he reads a case’s briefs, discusses the case with his clerks, listens to oral arguments, and convenes with the other judges. Asked about the legal reasoning he finds most persuasive, Roberts expressed a dislike for strident rhetoric.
Nick Stephanopolous, to whom I just linked, characterizes the evidentiary value of the two phases of Roberts' way of talking about the law. The more recent remarks, being more recent, possess some presumption. But the earlier Roberts' more strident ideology "has the ring of conviction." I don't see the contradiction Stephanopoulos seems to. As Roberts' jurisprudential thought and instinct has evolved, he has become less ideological and more incremental. Makes perfect sense.

So while Roberts' career as an attorney may or may not serve as an index of his likely career as a judge in substantial terms, it doesn't correlate at all closely with the method of reasoning he is likely to employ as a judge -- and this on two counts. First, an attorney does not reach decisions about final legal positions at all; his clients do. He decides how to argue the positions effectively. Second, Roberts' appears to have changed -- in perfectly understandable, even predictable ways -- since the days when he worked as an attorney. And, because his method of reaching decisions will largely determine the character of his decisions, there is not much to be learned from Roberts' career as an attorney.