Roberts Cultivated An Audience With Justices for Years
Sunday, September 11, 2005
John G. Roberts Jr. built a golden reputation as a "lawyer's lawyer" without doing most of the things that lawyers do. He never filed a lawsuit, addressed a jury, cross-examined a witness, took a deposition or negotiated a deal. He never advised a client on a tax return, a plea bargain, a restraining order, a will or a divorce. If he ever got into a confrontation with opposing counsel, no one seems to remember it.
That is because Roberts has spent most of his career as a star -- by all accounts, a superstar -- in the most rarified constellation of the legal galaxy, the exclusive club of Supreme Court appellate specialists. Now that Roberts has been nominated to sit on the court as its leader instead of standing before it as an advocate, his 17-year membership in that genteel, apolitical, almost academic club of overachievers may reveal more about his legal mind than his six-year stint as a brash, young Reagan administration aide or his two-year tenure as a federal judge.
There are 1 million lawyers in America, but only about two dozen Supreme Court specialists, nearly all white, nearly all male, nearly all based in Washington. They include staunch Republicans such as former solicitor general Theodore B. Olson and staunch Democrats such as former solicitor general Seth P. Waxman, but most of them will represent almost anyone with a case before the court; Waxman keeps a statue of a gunslinger in his office, a reminder that he's a hired gun. Roberts had a typically non-ideological practice, defending welfare recipients and environmental groups as well as coal and car companies, and once offering free advice to a gay rights group in a landmark anti-discrimination case.
But if his advocacy career offers few clues about what Roberts thinks, it does help illuminate how he thinks. The top Supreme Court advocates do not rely on grand theories; they delve into the minutiae of facts and law on a case-by-case basis. They analyze cases from every angle and know every weakness in their own arguments. They persuade with painstaking research and rigorous logic, not Perry Mason-style theatrics. They don't have to mingle much with the real world, but they do have to express complex ideas in clear terms. They are buttoned-down institutionalists; none of them wear bolo ties in court.
"It's a very intellectual practice, a lot like being a judge," says Richard J. Lazarus, a former Roberts roommate who runs Georgetown University's Supreme Court Institute. "You can't be dogmatic. You've got to be able to see every side, and that's what made John so terrific."
Supreme Court specialists earn their keep by writing briefs and occasionally arguing a case -- which usually consists of answering a half-hour of questions about one arcane point of law, and earning their firms hundreds of thousands of dollars in the process. But their work is not nearly as lucrative as litigation or corporate transactions; Carter Phillips, a veteran of 45 high court arguments, says the real benefit for their firms is "visibility, panache and stature."
In any case, it is good work if you can get it, and Roberts got it, arguing 39 cases before the justices, winning 25 of them. As a deputy solicitor general in the administration of President George H.W. Bush and a partner at the blue-chip firm of Hogan & Hartson, he was renowned for crisp writing, obsessive preparation and smooth-as-glass performances in court. He never seemed flustered or defensive, and his authoritative tone made even the most complicated legal parsing sound as obvious as 2 plus 2. Supreme Court advocacy requires a kind of role-playing, and Roberts always cultivated an air of matter-of-fact reasonableness, regardless of whether his case was a dog or a slam-dunk. He knew the habits and history of the justices as well as any other American, and he deftly played to his audience.
"Impassioned rhetoric doesn't work with the Supreme Court," he once told legal journalist Tony Mauro. "If it did, I'd become impassioned."
By the time a case reaches the Supreme Court, factual issues are no longer in dispute, which fuels a certain above-the-fray quality in the lawyers who argue there. Some liberals, concerned by some memos Roberts wrote during the Reagan administration about issues such as busing and sex discrimination, wonder whether nearly two decades of high-level appellate work have given him the empathy to deal with real-world problems.
"It's helpful for someone who's going to be a judge to have dealt with ordinary people," says Peter B. Edelman, a Georgetown law professor and former Clinton administration official who opposes Roberts's nomination. "Institutionally, it's better for the court to have as many people with real-life experience as possible."
Then again, no one would describe the current Supreme Court as streetwise; as Edelman pointed out, none of the liberal justices were digging ditches before their nominations, either. All the justices have been federal judges for at least 15 years (for some, including their time on the high court), and several were once law professors. And Roberts's colleagues say he did at least try to break out of the appellate bar's ivory tower. When he defended Toyota against a claim for a repetitive-motion injury, he visited a factory to get a better understanding of the work in question. When he defended Alaska against a native land claim, he flew over the Arctic Circle, boated up pristine rivers and visited native villages to get a feel for the back country.
"This kind of advocacy can be an academic exercise, but John always wanted to make sure he could explain his arguments in real-world terms," says Gregory Garre, who worked for Roberts at Hogan & Hartson and is now the firm's top appellate lawyer. "He's not the kind of guy who makes up his mind right away. He goes through cases brick by brick."