Roberts
Cultivated An Audience With Justices for Years
By Michael Grunwald
Washington Post Staff Writer
Sunday, September 11, 2005; A01
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."
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."
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.