Bench Memos

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Re: Re: Bum Rap


Following up on Andy’s post, I would only suggested that I am not sure that the arguments a lawyer makes are always “highly relevant,” but rather, I think that there is something of a sliding-scale of relevance. Thus, if an attorney works for a public-interest group, where they take the case to promote a particular agenda—as was the case with Justice Ginsburg and her work with the ACLU—then I think the arguments made are highly relevant given their ability to control their message and pick their arguments If, however, an attorney makes an argument on behalf of the government (or, a typically hierarchical firm), then I think it is less relevant. In those cases, it is much more likely that they are implementing someone else’s view of the law—one which may be plausible or even correct, but one which may be different from how the particular lawyer sees the law. This is true even for a big partner, who may make an argument that the client wants to see made (so long as it is within the limits of the law), even though he disagrees.

Accordingly, in the Rust case, Roberts almost assuredly was not the person who made the decision to challenge Roe, but rather he implemented the administration’s position. Or to take another example, Miguel Estrada worked in the Clinton Justice Department, and almost assuredly made arguments with which he disagreed, but which were within the limits of the law and effective advocacy of his client’s interest. In either case, I’m not sure how relevant the arguments they made are to how they would approach that issue if it came before them as a judge, and that is what the Left is trying to derive from Roberts’s language from the brief in Rust. There is certainly no disputing that Roe has been attacked from the Left (see, e.g., Kitty McKinnon) and the Right as a poorly reasoned decision, but if someone is going to make that case regarding Roberts’s view of the decision, then I think it should be done on the basis of something more substantial than his advocacy in Rust.


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