How can you determine a lawyer’s true beliefs when every action is undertaken in the service of a client?
One of the most daunting challenges in the process of selecting judges is guessing what a lawyer actually believes. How can you ascertain what a lawyer truly thinks when every effort is framed as representing a client?
Undoubtedly, many attorneys in firms operate as hired guns. They take on whatever paying client comes knocking. When a lawyer accepts a matter, they enjoy plausible deniability: I zealously represented my client, irrespective of whether I agreed with the cause. If that is the case, how can we ever know what a lawyer genuinely believes?
You cannot rely on clerkships as reliable indicators. Those aiming for Supreme Court clerks can often stage their politics to pass through the gates—and I’m not referring to so-called counter-clerks. Red and blue banners are matter-of-fact symbols, not proofs. Dana Remus served as a clerk to Justice Alito, then went on to be White House Counsel to President Biden. Eric Miller clerked for Judge Silberman and Justice Thomas, later appointed by President Trump to the Ninth Circuit, yet he consistently votes against conservatives on that court. There are many more examples along the same lines.
Perhaps you could observe the kinds of pro bono work a lawyer undertakes. Yet even there, firm associates are frequently nudged toward certain matters or discouraged from pursuing others. Remember that Romer v. Evans saw Roberts provide pro bono assistance to the plaintiffs. Pro bono activity is not always a dependable signal of what a person believes.
Maybe you could give extra weight to lawyers who enter political appointments or government roles. But once again, it isn’t decisive. Government lawyers have clients, just like anyone else. And those who seek higher office will often go along with the prevailing mood. Amit Argawal clerked for Judge Kavanaugh and for Justice Alito, then served as Florida’s Solicitor General under Attorney General Pam Bondi. When he argued Slaughter, people assumed he carried conservative bona fides. Now Argawal works with Protect Democracy, a prominent liberal firm that opposes President Trump.
This backdrop brings us back to (of course) John Roberts.
Back in September 1990, when Roberts was the Principal Deputy Solicitor General, he joined Ken Starr’s brief in Rust v. Sullivan, which argued that Roe was wrongly decided and should be overruled because there is no support in the text, structure, or history of the Constitution for a right to abortion. Did Roberts genuinely believe this? Or did he sign it simply because it reflected the office’s position? As Judge James Ho noted in a recent National Review essay, Roberts repudiated the idea of deducing a lawyer’s personal views from the position taken on behalf of a client. Of course, when it mattered, Roberts ended up upholding Roe in Dobbs.
So I return to my central question. When everything a lawyer does is performed for a client, how can we really know what the lawyer believes? The ballroom-case example provides another illustration.
Deputy Solicitor General John Roberts argued Lujan v. National Wildlife Federation (1990)—not to be confused with the landmark Lujan v. Defenders of Wildlife (1992). Did Deputy SG Roberts personally 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 standing. In Massachusetts v. EPA, Chief Justice Roberts likewise favored a restricted interpretation of standing. So what does Roberts actually think about standing?
Well, in the ballroom case, he identified a person who walks near Lafayette Park as sufficiently harmed to halt the construction of a military facility. He dismissed the national-security concerns in a dubious footnote.
What exactly does Roberts believe in this matter? Is there a difference between John Roberts the advocate and John Roberts the judge?
