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.
Cate Stetson, now codirector of Hogan's appellate practice, wrote many of those drafts as an associate working with Roberts. "Nothing escaped him, on any level," Stetson told the Senate Judiciary Committee at Roberts's confirmation hearing in 2005. "He exposed and tested weaknesses in reasoning, he caught grammatical errors, and in between those extremes he suggested subtle and not-so-subtle changes to a brief's wording, tone, and structure."
Typographical errors in briefs are a major turn-off for Roberts, both now and then. In the nineties, Roberts ruined more than one dress shirt at the Wilson-Epes Printing Co. on deadline day for briefs, checking galleys and making last-minute revisions. "We spent a lot of mornings down there drinking bad coffee," recalled Ford Motor Company general counsel David Leitch, another longtime Roberts colleague at Hogan. "There were to be no errors or typos. He was very hands-on about it."
Roberts practiced for oral argument in multiple moot courts—at least two, up to five, or even 10 in his early days. He'd invite some "judges" who were expert in the field, some who were not, and some who would be hostile to his arguments. There would be extensive discussion afterward, aimed at honing arguments for clarity and persuasiveness. "That was the collaborative part of the process," says a colleague.
Preparing for an argument also often meant a road trip to better understand the case's context. "I can't think of a case he ever lost when he did a site visit," says Jonathan Franklin, now head of the appellate practice at Norton Rose Fulbright, a longtime member of Roberts's team at Hogan. Alaska, whose officials hired Roberts for numerous appeals, was a frequent destination.
Roberts also traveled to Kentucky to study operations at a Toyota automobile assembly plant in preparation for an Americans with Disabilities Act case in 2001. During his argument in Toyota Motor Manufacturing v. Williams, Roberts knew the record cold: He answered detailed questions about the trial evidence and testimony about whether the plaintiff's carpal tunnel injuries rendered her disabled. Asked by Justice Ginsburg about a sentence in the lower court ruling that seemed to contradict what he had just said, Roberts parried by suggesting, politely, that she had misread its meaning. "A very important sentence that I think has to be read carefully," Roberts said. (The court sided unanimously with Toyota, though it remanded the case to lower courts, where a settlement was reached.)
And then there were the infamous index cards. As he contemplated a case, Roberts would write down all the possible questions he thought justices might fire at him—dozens, if not hundreds. He'd organize them into four or five topics: A, B, C, D, and maybe E. Then, he would shuffle them and fashion answers that would make a smooth transition from, say, C to E to A. "You can't guarantee the first question you're going to get is going to be on your first point. It may be your third point," he told Garner. "And it's very awkward for somebody to say after they answer the third point, 'And now I'd like to go back to the point I was making'. . .You kind of lose a little bit of traction." Having thought-out transitions at the ready, Roberts said, "makes the argument look fluid no matter what questions you get."
In a way, Roberts's landmark ruling in NFIB v. Sebelius, upholding the Obama health care overhaul on one ground but not the other, while also dealing with Medicaid, is the ultimate index card shuffle as it cobbled a majority together. "Why not coalesce around a minimalist point? If there are grounds to uphold a statute, you look for them. That's what you do," says Stuart Gerson. Now with Epstein Becker & Green, Gerson was a top Justice Department official who worked closely with then–deputy solicitor general Roberts on Supreme Court cases during the George H.W. Bush administration. "He treated the justices the way they viewed themselves," Gerson says of Roberts. "They don't see themselves as politicians in robes, so it was not an exercise in oratory. He engaged them in a conversation."
Still, sometimes Roberts's self-assurance backfired. In the 1993 case Helling v. McKinney, Roberts argued for the government that prisoners did not have an Eighth Amendment right to refuse to share a cell with a smoker. Exposure to secondhand smoke, he asserted, was not a "serious deprivation of basic human needs." But Roberts persisted, perhaps too heavily, in refusing to go along with then-Justice David Souter's characterization of the issue. "Isn't nontoxic air a basic human need?" Souter asked. More than once, Roberts responded by reorienting the question: "A smoke-free cell is not a basic human need." Roberts lost, 7 to 2.
On behalf of a private client in a 1998 Federal Credit Union Act case, Roberts was quick out of the gate to respond to a question that had been posed earlier by Justice Anthony Kennedy to then–solicitor general Seth Waxman. "First of all, that's beside the point," Roberts said. Kennedy interjected to defend his concern, and Roberts lost Kennedy's vote—and lost the case, 5 to 4. Roberts's statement "might have been worded more artfully to have avoided alienating the justice," David Frederick wrote in his 2003 book Supreme Court and Appellate Advocacy.
Roberts learned from these missteps. "It's good to establish—and I think I didn't appreciate this as much as I should have—some dispassion," he said in a 2009 C-SPAN interview. "Yes, you want to have a certain level of zeal and commitment to your client's cause. The justices know that. But when they ask you a question about a difficult case, it's better to sometimes say, 'I appreciate that this case doesn't support my side" . . .as opposed to, as soon as [a justice asks a question about the difficult case], saying, 'No, that case doesn't hurt us at all, and here's why.' "