Roberts Cultivated An Audience With Justices for Years

Those who know Roberts say the Senate Judiciary Committee can expect a similar performance when he testifies on his own behalf. He will seem to be mulling his responses, but he will have anticipated just about every question and will have prepared every answer in advance. Nothing will sway him from his script.

A Small Circle

Tom Goldstein is a black sheep of sorts on the Supreme Court bar, the exception that proves the rule. He did not attend law school at Harvard or Yale, or clerk for a Supreme Court justice, or work for a solicitor general. He became fascinated with the court while working as an intern at National Public Radio. He later figured out a way to use computers to predict the most likely cases the high court would hear, and began cold-calling lawyers with promising cases before the court even accepted them, offering to handle their appeals at cut-rate prices. That caught the attention of establishment lawyers such as Roberts, who was quoted saying that if he needed a heart surgeon, he wouldn't hire one who called him looking for business.

"The John Roberts view of lawyering is very traditional: You let cases come to you," says Goldstein, who runs a firm and two blogs out of his home with his wife, and has already argued 14 Supreme Court cases at age 35. "That's easy when you're as immensely talented as John Roberts."

That is about as snippy as it gets on the Supreme Court bar, where conflict is usually limited to the occasional snide adjective in a brief. This is a small group of repeat players; an opposing counsel today may file a friend-of-the-court brief tomorrow, or serve on the same moot court at the Georgetown institute, or sit at the same table at the monthly meetings of the appellate bar at the E. Barrett Prettyman Courthouse.

"It's a collegial form of law, very civilized," says Robbins, a former prosecutor who still does trial work as well as appeals. "The issues have narrowed to one question. You don't find yourself asking some criminal: 'Aren't you just saying that because you're a dirtbag?' " The work of Supreme Court advocates is a lot like the work of Supreme Court justices; they spend a lot of time alone reading case law, analyzing statutes, probing for weaknesses in arguments. In his history article, Roberts suggested that he still dissects briefs as ruthlessly as he used to dissect his own arguments as an advocate: "My reaction is not typically, 'Well, that's a good argument,' or 'That's persuasive,' but instead, 'Says you. Let's see what the other side has to say.' "

As an advocate and a judge, Roberts has dedicated his career to interpreting the Supreme Court's decisions, searching for "the right answers" to legal questions based on statute and precedent. As a justice, he would have more leeway to establish those answers and set those precedents. But regardless of his personal beliefs, most of his colleagues on the Supreme Court bar suspect he would keep trying to find the right answers on a case-by-case basis, according to facts and the law. Appellate lawyers tend not to like judges who draw conclusions and then come up with rationales to justify them; it seems like a violation of the rules of their society.

"If he was just on an ideological crusade, I don't think this would have been particularly fulfilling work," Goldstein says.

Supreme Court specialists tend to revere the rule of law, and wax lyrical about their roles in preserving it. In his history article, Roberts compared them to medieval stonemasons who spent months meticulously carving gargoyles high in cathedrals where no one would ever see their work. Similarly, he wrote, oral advocates must rehearse answers to hundreds of questions the justices probably never would ask them.

"The stonemasons did it because they were carving for the eye of God," Roberts declared. "The advocate who stands before the Supreme Court also needs to infuse his craft with a higher purpose. He must appreciate that what happens here, in case after mundane case, is extraordinary -- the vindication of the rule of law -- and that he as the advocate plays a critical role in the process. The higher purpose will steel him for the long and lonely work of preparation . . . and will forge a special bond with his colleagues at the Supreme Court bar."

Roberts has told friends that if he is confirmed, he still hopes to attend monthly dinners with his former colleagues.