What Kind of Appellate Lawyer Was Justice Roberts?
Ten years after John Roberts made his last argument before the U.S. Supreme Court, we look back at his appellate career and the hints he gave about the justice he would become.
Once he was hired to handle a case, Roberts was "totally and completely in charge" of all aspects of the briefing and argument, says a fellow high court practitioner. "He was not one to involve many people in his preparation," says another longtime member of his team.
In-depth research was another hallmark of Roberts's advocacy. Longtime colleague Gregory Garre recalls that even after his Hogan colleagues were using online databases, Roberts still Shepardized, checking citations by hand: "And he would come back with one or two cases we hadn't found." [Learn more about the lawyers that Roberts mentored and influenced during his career.]
Roberts knew he spent more time preparing than most clients would be willing to pay for, so much of it was off the clock. "I have never felt comfortable standing up before a court and getting a question and saying, 'My client didn't pay me enough to know the answer to that, Your Honor,' " he said in an interview with legal writing guru Bryan Garner in 2007.
Roberts's first task after taking on a new matter, says Garre, was to "take a fresh look at the entire case" to make sure that it was teed up properly. "He was uniquely able to identify the crux of the case," adds Garre, who went on to be solicitor general and now leads Latham & Watkins's Supreme Court and appellate practice. That assessment sometimes resulted in reframing a case to make his argument more appealing to a majority.
A classic example came in 1997, when Roberts was hired to defend the city of Tarrant, Alabama, in a difficult section 1983 civil rights case. The family of an African American woman claimed that local firefighters failed to rescue her from her burning home because she was black. In addition to denying liability in his merits brief, Roberts for the first time identified a potentially fatal jurisdictional problem with the case: The Alabama Supreme Court's ruling in favor of the city was interlocutory, not final, so he could assert that the U.S. Supreme Court had no jurisdiction to rule.
During oral argument, several justices asked the plaintiff's lawyer about the new issue, so when Roberts rose to speak, he pounced. "The court lacks jurisdiction to review the interlocutory decision of the Alabama Supreme Court," he said flatly. He won on that issue by 8 to 1. Without the jurisdictional issue in his back pocket, Roberts might have had a much tougher time achieving victory.
Roberts has shown some flair as a writer since joining the high court in 2005. He wrote a dissent in 2008 using a crime noir style that surprised many court-watchers. ("Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.") But those who have followed his career know he valued eye-catching prose as an advocate, too. [Read Roberts's tips for appellate advocates.]
Roberts's 2003 brief in Alaska v. EPA has become widely known. It was a state-federal dispute over the Clean Air Act's rule that the "best available" technology be used to limit air pollution emitted by a new electric generator at the Red Dog Mine near the Arctic Circle. Representing Alaska, Roberts humanized the case and told the court how the mine got its unusual name. The prospector who discovered the area, Roberts told the court, "died before the significance of his observation was known," Roberts said, but "his faithful companion—an Irish setter who often flew shotgun—was immortalized by a geologist who dubbed the creek . . .'Red Dog Creek.' "
Asked why he recounted the story of the creek's name, Roberts told legal writing guru Garner, "You waste a couple of sentences in a brief, but you put that in there and it's kind of interesting. Then everybody remembers that. And they're kind of invested in it, and they want to see how the story ends up, and it gives a little texture to the brief."
Roberts delegated the writing of parts of his briefs, but sparingly. Curiously, he'd let associates write the sections that pertained to the areas of law that he knew the most about. But he would assign to himself sections that covered unfamiliar territory. Otherwise, he said, "I would feel uncomfortable that I wasn't in a position to evaluate what the associate was going to give me."