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.
More succinctly, he told this reporter in 2000, "Impassioned rhetoric doesn't work with the Supreme Court. If it did, I'd become impassioned."
Another crucial strategy came into play when he was the "bottom side" advocate; in other words, the second lawyer to approach the lectern. Advocates are advised not to prepare a script for any part of the argument, but Roberts made a special point of not planning what he would say in the role of appellee. He preferred to listen to his adversary and pick up where he or she left off—or more importantly, where the justices left off, so he could respond to whatever issue concerned them.
He carried that strategy to his confirmation hearing in 2005. The Senate Judiciary Committee wanted him to submit his written statement four days before the hearing began. He refused, telling the staff, "I don't know what it is going to be, because I am going to be listening to what you say, and I have to react to that."
Rebuttal time was another opportunity—the last chance—for Roberts to make an impression on the court. In Frederick's book on advocacy, Roberts said in an interview that he only went for home runs in his rebuttals. But if a home run was not possible on the main issues in the case—if the argument was showing cracks—he'd knock it out of the park on a lesser issue. "His theory is that the advocate wants members of the court to leave the courtroom thinking the very last point the advocate made was absolutely correct," wrote Frederick, a veteran high court advocate with Kellogg, Huber, Hansen, Todd, Evans & Figel.
Roberts left the lectern for good in 2003, moving to the U.S. Court of Appeals for the D.C. Circuit before taking his current post. He said recently, "I miss a little bit the competitive edge. On the court, you don't win or lose a case," though in private practice you do. "That gives you an edge to your work." But Roberts paused and added, "I have no great desire to go back."
Tony Mauro is ALM's Supreme Court correspondent. Email: email@example.com.