The Big Leagues
In the 19th century, giants such as Henry Clay and Daniel Webster regularly appeared before the court. But by 1980, one amateur court historian wrote in the Journal of Supreme Court History, that four-fifths of the oral advocates -- not including lawyers from the solicitor general's office, who represented the United States -- were arguing for the first time. "It used to be that lawyers appeared once in a lifetime, and brought their grandmothers from Dubuque to watch," says E. Barrett Prettyman Jr., who became an exception to that rule after joining Hogan & Hartson 50 years ago. "It's not like that anymore."
By 2002, according to the historian, barely half the advocates were first-timers, and the percentage of "recidivists" who argued more than one case in the term had increased tenfold. The shift began in the mid-'80s, when a wave of lawyers left the solicitor general's office to launch Supreme Court practices at major firms. Deputy Solicitor General Stephen M. Shapiro lured several colleagues to Mayer, Brown & Platt. Solicitor General Rex Lee brought Phillips to Sidley & Austin. Soon everyone wanted an experienced advocate; in 1996, one losing attorney was sued for malpractice for failing to refer his case to a specialist.
"If one side hires a Supreme Court specialist to present a case, it may cause the client on the other side to think that they ought to consider doing that as well," the historian wrote. "This is just a variant on the old adage that one lawyer in town will starve, but two will prosper."
That historian, incidentally, was John G. Roberts Jr. He always revered the court as an institution, and appellate advocacy appealed to his analytical mind; it also seemed like a steppingstone to the federal bench. So after serving as a political appointee in the Reagan administration, during which he wrote knife-edged memos attacking liberal ideas and ridiculing Democrats, he joined Hogan & Hartson to work for Prettyman, a liberal Democrat who was one of the deans of the Supreme Court bar. Prettyman became a mentor to Roberts, who adopted his habits of reading every page of the trial record himself, and carrying around a legal pad at all hours to jot down potential questions the justices might ask.
"There's nothing political about this work," says Prettyman, the son of a legendary appellate judge whose name graces the courthouse where Roberts sits. "You don't have to be in love with your client. You've just got to work really, really hard."
In 1989, Roberts joined the solicitor general's office, a way station for almost every prominent Supreme Court specialist, offering unparalleled opportunities for bright, young lawyers to gain court experience. It is a hardworking office with an old-fashioned culture of professionalism, where lawyers tend to believe there is a right answer to legal questions based on statutory interpretation, and still wear morning coats and ascots when appearing before the court. "Politics" is a dirty word on the Justice Department's fifth floor, and while Roberts served as Solicitor General Kenneth W. Starr's "political deputy," and once signed a department brief that described Roe v. Wade as "wrongly decided," his colleagues do not recall a politically charged atmosphere in the office.
"It was more of a scholastic atmosphere," recalls Maureen Mahoney, now a Supreme Court specialist at Latham & Watkins. "We had lawyers all across the political spectrum, and I don't think anyone would say John had an ideological agenda."
President George H.W. Bush tried to put Roberts on the bench in 1992, but his nomination languished in the Democratic-controlled Senate, then stalled after President Bill Clinton's election. So Roberts returned to Hogan & Hartson. Its Supreme Court practice -- like most Supreme Court practices -- was essentially a for-profit version of the solicitor general's office, without the costumes. The main difference was that as the court's caseload has dwindled to about 80 per year, with many arguments reserved for government lawyers, even the elite advocates had to compete for paying clients at "beauty contests."
Roberts was elite among the elite; David Frederick, the author of a textbook on Supreme Court advocacy as well as a practitioner, compares him to the basketball star Tim Duncan, brilliant without being flashy. Clerks often emerged from chambers to watch Roberts in action, and the court's voluble justices sometimes allowed him to speak for several minutes without interruption. He once argued and won a case on a few days' notice -- then argued and won an unrelated case in an appeals court that afternoon. He won his first case before the Supreme Court by a unanimous vote; eight years later, apparently concluding that Roberts had lured them further than they wanted to go, the justices unanimously reversed the decision.
Roberts was not infallible. He once lost a case 9 to 0 on behalf of Digital, and when asked why, he explained that there were only nine justices. Frederick's book, which cited numerous examples of Roberts's skill, noted one possible misstep: Roberts once dismissed a question by Justice Anthony M. Kennedy as "beside the point," which was true, but "might have been worded more artfully to have avoided alienating the justice." Roberts lost the case, 5 to 4, but Frederick notes that he may have concluded he could win a fifth vote by exposing Kennedy's fallacy; Justice Sandra Day O'Connor, often a swing vote, sided with Roberts.
Like Prettyman, whom he once defeated in a case before the court, Roberts was compulsive in his preparations. He ran three moot courts for each case, and spent countless hours -- not all of them billable -- fine-tuning his arguments. He boiled down his arguments to a few main points, then committed them to index cards and memorized them, then shuffled the cards to practice delivering them in different orders with different segues. He often felt ill before entering the high court, but at the lectern he was unflappable and meticulous, answering questions with the calm demeanor of an adviser without a rooting interest.
"When I'm at the podium, everyone knows I'm an advocate," says Lawrence S. Robbins, who worked with Roberts in the solicitor general's office and is now a court specialist at his own firm. "But John doesn't come across as a salesman, not for a minute. Don't get me wrong: He is a salesman. But it just sounds like he's telling the truth and you're crazy if you disagree."
