Nominee Excelled as an Advocate Before Court

An oft-cited instance of Roberts's verbal adroitness occurred in a 1993 case. He was trying to convince the court that it was not cruel and unusual punishment for a prison to subject an inmate to exposure to secondhand cigarette smoke.

A justice asked if it would be permissible for the prison to subject inmates to asbestos exposure.

It would not, Roberts replied, because "we as a society do not treat exposure to asbestos as a matter of personal preference. When you go to a restaurant, they don't ask if you want the asbestos section or the non-asbestos section."

The courtroom erupted in laughter -- but Roberts may have been too clever by half. His side lost.

Still, the moment illustrated how difficult it has been for the justices to knock Roberts off balance.

In private practice, he would spend about five weeks preparing for each case, according to Frederick's book, "Supreme Court and Appellate Advocacy." During that process, Roberts would write down hundreds of potential questions and answers on notecards. He would also put his six or seven key points on notecards, then repeatedly shuffle the cards and practice making the arguments in different order.

Asked by Frederick whether clients always paid for that much preparation, Roberts noted that sometimes he did not charge for every hour spent on a case.

"But I long ago decided that telling the court, 'I don't know because the answer to that question wasn't in the budget,' was not what I wanted to say," he said.

Supreme Court cases are not decided solely or even mostly by oral argument. The justices have already waded through extensive briefs before each side argues in front of them.

But, Supreme Court practitioners say, an attorney's performance can sometimes tip the balance on close issues.

Roberts's first case before the court, U.S. v. Halper , involved a man who had been convicted of Medicaid fraud and sentenced to two years in prison and a $5,000 fine. The federal government also sued him for his offenses, and a court assessed him a $130,000 civil fine.

At issue was whether adding a civil penalty to a criminal one was double jeopardy, which is unconstitutional.

Roberts argued that it was and, by a vote of 9 to 0, the court agreed.

Eight years later, with five of the same justices serving -- but Roberts not arguing -- the court reversed itself, overruling the Halper decision 9 to 0.

"I've always suspected the quality of the advocacy may have accounted for the difference," said Franklin, Roberts's former partner.