Roberts Was Influenced by Critics of the Warren Court

Friendly, a Rockefeller Republican who served on the 2nd Circuit from 1959 until his death in 1986, is widely regarded as the most talented appeals court judge of his generation. He was a longtime private-sector lawyer who wrote his own rigorous opinions, as well as many influential law review articles.

He regularly plucked top students from Harvard, where he had studied, to be his aides. Roberts, whose credentials as a prize-winning undergraduate majoring in history and managing editor of the Harvard Law Review matched Friendly's own, got his clerkship without even having to be interviewed, according to Richard J. Lazarus, Roberts's close friend.

Friendly could be a stern taskmaster. "Sometimes the clerk thought he had something interesting to say, and sometimes the judge would disagree," said Macey, also a former Friendly clerk.

Roberts loved him. His esteem is evident not only from his frequent citations of Friendly's work in his own writings, including six of his 49 opinions on the D.C. Circuit, but also from the fact that he corresponded with the judge throughout his time as a Reagan aide.

In one letter, dated Nov. 4, 1981, Roberts told Friendly that it was "an exciting time to be at the Justice Department, when so much that has been taken for granted for so long is being seriously reconsidered." He continued: "You assist us down here every day through the articles and opinions that so often light the way."

Friendly's views on many issues paralleled those of the Legal Process School, says Rakoff, a former Friendly clerk. The 1988 edition of the Hart & Wechsler book is dedicated to him.

Friendly felt that the Warren Court's 1966 Miranda v. Arizona ruling, which created the "right to remain silent," was misguided. In a famous 1970 article, Friendly attacked the Warren Court for opening up state criminal convictions to wide-ranging federal court review.

Friendly felt that a state conviction should usually be challengeable in federal court only when the prisoner also had a strong claim of innocence, rather than wasting the courts' time on technical issues raised by guilty defendants.

But the Warren Court had expanded access to the federal courts as a remedy for what it considered the widespread abuse of rights by state criminal justice systems, especially in the South.

Friendly thought state courts were just as capable of protecting federal constitutional rights as federal courts were.

On Nov. 12, 1981, Roberts offered then-Attorney General William French Smith his unsolicited critique of the Warren Court's decisions, in a memo that cited Friendly's article seven times and the Hart & Wechsler book once.

"The current availability of federal habeas corpus" -- the legal term for post-conviction constitutional challenges -- "particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," he wrote.

In April 2003, Roberts, sitting before the Senate Judiciary Committee as a nominee to the U.S. Court of Appeals for the D.C. Circuit, offered similar comments in response to a question by Sen. Russell Feingold (D-Wis.) about the death penalty -- a major source of habeas corpus petitions in federal court.

Roberts replied that "it's not certain, it's not definite, and there doesn't seem to be any reasonable time limitation. The effectiveness, if you believe in capital punishment, the effectiveness of capital punishment diminishes if the crime was committed 30 years ago. And if it takes that long to get through the system, it's not working, whether you're in favor of the death penalty or against it."

In the meantime, however, conservative critiques of federal habeas had become the law of the land. In 1996, the Republican Congress passed, and President Bill Clinton, a Democrat, signed a bill that sharply restricted access to federal habeas corpus.

Nevertheless, petitions for habeas corpus from state prisoners continue to occupy much of the court's time -- far more than higher-profile issues such as abortion and school prayer.