Advocate John Roberts v. Chief Justice John Roberts

One of the greatest challenges with judicial selection is knowing what a lawyer actually believes. How do you know what a lawyer really believes when he is always representing a client?

For sure, lawyers at firms are largely hired guns. They’ll take whatever paying client comes through the door. Indeed, whenever a lawyer takes a case, he has plausible deniability: I zealously represented my client, without regard to whether I agreed with the cause. How, then, do you know what a lawyer really believes?

You cannot give any weight to clerkships. Those who seek to clerk on the Supreme Court can often fake their politics to get through the gates–and I’m not talking about so-called counter-clerks. Brass rings are neither red nor blue. Dana Remus clerked for Justice Alito, and then served as President Biden’s White House Counsel. Eric Miller clerked for Judge Silberman and Justice Thomas, and was appointed by President Trump to the Ninth Circuit, yet he consistently votes opposite the conservatives on that court. There are many more such examples.

Maybe you could see what sorts of pro bono cases a lawyer takes. But still, lawyers at firm are often nudged to take certain cases or discouraged from taking other cases. Remember that John Roberts provided pro bono assistance to the plaintiffs in Romer v. Evans. Pro bono is not always a reliable indicia of what a person believes.

Maybe you could give special credit to lawyers who take political appointments in government service. But again, not really. Government lawyers have clients, just like everyone else. Moreover, government lawyers who seek higher office will go along to get along. Amit Argawal clerked for Judge Kavanaugh and for Justice Alito, then served as Solicitor General of Florida under Attorney General Pam Bondi. When he argued Slaughter, people thought he could brandish conservative bona fides. Yeah right. Now Argawal works for Protect Democracy, a leading liberal firm that opposes President Trump.

This background brings me to (who else) John Roberts.

Way back in September 1990, when Roberts was the Principal Deputy SG, he joined Ken Starr’s brief in Rust v. Sullivan which argued that “Roe was wrongly decided and should be overruled” because there’s “no support in the text, structure, or history of the Constitution” for a right to an abortion. Did Roberts actually believe this? Or did he just sign it because that was the office’s position. As Judge James Ho pointed out in a recent National Review essay, Roberts disavowed anything he signed as a lawyer: “I do not believe it is proper to infer a lawyer’s personal views from the position taken on behalf of a client.” Of course, when push came to shove, Roberts upheld Roe in Dobbs.

So I return to my principal question. When everything a lawyer does is on behalf of  client, how do we actually know what the lawyer believes? The ballroom case leads to another exmpale.

Deputy Solicitor General John Roberts argued Lujan v. National Wildlife Federation (1990)–not to be confused with the landmark decision of Lujan v. Defenders of Wildlife (1992). Did Deputy SG Roberts perosnally want to narrow Article III standing? I would think so. In a 1993 article in the Duke Law Journal, Roberts favored a narrow reading of Article III standing. In Massachusetts v. EPA, Chief Justice Roberts favored a narrow reading of standing. So what does Roberts actually think about standing?

Well, in the ballroom case, he found a person who walks near Lafayette Park is sufficiently injured to stop the construction of a military facility. Roberts dismissed the national security concerns in a bogus footnote.

What exactly does Roberts believe here? Is there a difference between John Roberts the advocate and John Roberts the judge?