SCOTUS Mind-reading Part 2: Lawyers' Roles

by Michael Dorf

In a post last week, I recounted how another constitutional law professor had once lamented to me that it seemed like about 80% of our job consisted of trying to read the mind of the current SCOTUS swing justice. The post found its way into various links, including on social media. Here I want to respond to three reactions to the post as a means of commenting on the difference between the lawyer's role as advocate and the lawyer's role as advisor.
Reaction 1 (from a comment on the post itself): I'd be interested in a more extensive treatment of the idea that what passes for Con. Law expertise is actually a form of Kremlinology. In other legal fields, experts seem to be able to say useful things about, say, contract law or commercial law, without politically and psychologically profiling individual judges -- or even Justices, when a politically uninteresting non-constitutional issue comes before them.
To the extent that this commenter is making a point (and I realize that the comment is arguably just raising an issue) that constitutional law is qualitatively different from other areas, I strongly disagree. For one thing, although my interlocutor and I are both constitutional law scholars and teachers, we both also study other fields, and he and I were making a point about Supreme Court adjudication--which covers a wide range of fields. I don't fully agree with my friend and co-blogger Eric Segall that the Supreme Court is "not a court," but he is surely right that the Supreme Court is substantially less constrained by precedent than other courts. To the extent that constitutional law expertise with respect to Supreme Court cases involves Kremlinology, so does expertise in other fields with respect to the Supreme Court. Meanwhile and conversely, there is plenty of old-fashioned doctrinal analysis of constitutional law in lower courts that are bound by the Supreme Court. That's why I'm able to write a con law exam at the end of the semester each time I teach the class: I expect the students to be able to say, based on prior cases, which questions are easy and which are open. The tests they must apply are not value-neutral, but then that's often true in fields like contracts too (think about unconscionability, for example).
Reaction 2 (from a law professor who is a friend of a friend on Facebook): [begins by quoting my post] "At that point, the job of the constitutional law professoriate shifted to one of reading Anthony Kennedy's mind, as he became the median justice." [Then adds his two cents:] That sounds like the job of an advocate not a scholar.
Not exactly and yes. This reader is right that predicting how the swing justice will vote doesn't feel very scholarly. Indeed, that was exactly the point that my interlocutor was making in his lament and that I was making by endorsing it in the blog post. We were disheartened by the fact that we were so often ultimately just trying to engage in mind reading rather than engaging in real scholarship. So far, I agree with the commenter, or more accurately, he agrees with me.

But the commenter strikes me as wrong in thinking that mind-reading or forecasting is the job of the advocate. It is at best part of the preparation for the job of an advocate. In order to make an effective argument to any judge, it helps to know how that judge thinks about the law in general as well as about particular issues. So yes, mind-reading/forecasting is helpful for an advocate. But forecasting is not itself advocacy. Certainly one wouldn't say to a judge: "you're a conservative so you should rule against the criminal defendant" or "you side with the plaintiffs in gay rights cases so you should side with my gay plaintiff clients here." Doing so would mistake what the great legal philosopher H.L.A. Hart called the "external" perspective on law with the "internal" perspective.

A judge necessarily takes the internal perspective, i.e., the judge does not forecast how she herself will vote. That's a circular exercise. The judge asks what result the legal materials themselves require. This is why Holmes expressed only a half-truth when, in The Path of the Law, he equated law with "the prophecies of what the courts will do in fact." That is law from the external perspective--from, say, the perspective of a tax lawyer advising a business client about whether some proposed transaction will ultimately be treated as a loan or a capital investment. Such advice-giving based upon predictions about how a court (or in other contexts, an agency) will rule, is an essential part of the practice of law. But it is not the whole of law. The judges themselves take the internal perspective. Accordingly, a lawyer engaged in advocacy before a court also presents arguments from the internal perspective. As I explained in a 1995 law review article, there are only a few contexts in which judges themselves properly attempt to predict how other judges will rule, and thus only a few contexts in which advocacy properly focuses on prediction.

So, Reaction 2 above strikes me as half-right. Mind-reading is not scholarship, but (with a few exceptions) neither is it advocacy. It is, however, essential to legal advice-giving. But that brings me to . . .
Reaction 3 (from a Facebook comment by a lawyer who is a friend of a friend): Now, try to tell a client that you're basically just making an educated guess at what the judge is thinking and that he's going to have to pay you whether your educated guess is right or not. 
I must confess that I was surprised to see this comment from a practicing lawyer. This is the sort of thing that a good lawyer tells clients with some frequency. I'll give a very pedestrian personal example.

Some years ago I was a landlord because I had moved out of NYC when the housing market was depressed. Rather than sell my apartment, I rented it out to cover the mortgage payments and other carrying costs. When the market picked up, I sought to sell it. I found a buyer and scheduled a closing for after the expiration of the tenant's lease, but then it looked like my tenant intended to hold over, in violation of the terms of his lease. I consulted with a real estate lawyer. He told me that if my property were located in some other part of New York State, I would have little difficulty evicting my tenant quickly, but that the judges in New York City were much more tenant-friendly. The difference was not based on a difference in the applicable law, just the attitudes of the respective judges. Accordingly, my lawyer advised me that even though I would undoubtedly prevail in court eventually, it could take at least six months to do so, and in the meantime I could lose the sale. Properly informed, I negotiated with my tenant, giving him a financial incentive to leave on time, and he did so. The "educated guess" by my attorney was extremely valuable to me.

I have also occasionally been asked by investor clients to predict the outcome of pending Supreme Court cases. In doing so, I use a combination of my knowledge of the substantive law and my predictions about how the individual justices are likely to see the case. I then come up with rough percentages about various outcomes. I get paid regardless of whether I'm right or wrong. Not only do I tell the client that I am making a prediction of what the justices are thinking; that's a reason why the client hires me. The client--a hedge fund manager, say--is not an expert in either constitutional doctrine viewed in the abstract or the proclivities of the individual justices. From the client's perspective, my "expertise" in predicting how the justices will vote is part of why I'm valuable.

Is it embarrassing that I and lawyers who much more frequently give advice upon which investments are routinely made get paid whether we turn out to be right or wrong? No more so than that financial advisors get paid even if an ex ante good investment goes bust. No more so than that a doctor who advises having a surgery with a 99.9% survival rate gets paid even if the particular patient turns out to be the unlucky one in a thousand. In a great many fields in which professionals are paid for their advice, it is understood that a prediction is only that. If the client wants to pay the professional on a contingent basis, the client can negotiate that arrangement from the outset. Otherwise, the remedy for good faith ex ante reasonable professional advice that turns out to be unhelpful in the end is to seek advice from a different professional the next time.

To return to the main current of the discussion, it would affirmatively disserve the client's interest to give advice based only upon an "objective" analysis of the legal materials where the lawyer has reason to think that the particular judges who will decide the case will see the legal materials differently. If the lawyer who had Reaction 3 has clients who would be upset to learn that their attorney is basing his advice in substantial part on a prediction of how the particular judges will rule, the proper response is for the lawyer to explain to the clients why this is in fact in their best interest, given how our system works.