Chief Justice Bad@ss

by Pejman Yousefzadeh on January 3, 2011

For those wondering why it is that liberals really seem to have it in for Chief Justice John Roberts, Roger Parloff offers a straightforward and convincing explanation. The following is a long excerpt, but it is worth reading:

In January 1993 principal deputy U.S. solicitor general John Roberts Jr. was arguing before the

U.S. Supreme Court in a case brought by an inmate in a Nevada penitentiary. The prisoner, a nonsmoker who had been sharing a cell with a five-pack-a-day man, claimed that being subjected to so much secondhand smoke amounted to “cruel and unusual punishment” in violation of his Eighth Amendment constitutional rights. The United States, represented by Roberts, was siding with Nevada in arguing that the inmate’s plight did not rise to constitutional dimensions.

“What about asbestos?” Justice Byron White asked Roberts, according to the official tape of the argument. Could the warden of a prison with decaying asbestos pipes force an inmate to inhale those toxins too?

That would be different, Roberts said without hesitation. “When we go to a restaurant, they don’t ask, ‘Do you want the asbestos section or the non-asbestos section?’ They do ask, ‘Do you want smoking or nonsmoking?’”

The response, which broke up the room, illustrates a few of the traits that made Roberts “the best Supreme Court advocate of his generation,” in the estimation of Tom Goldstein, a leading practitioner of the craft today, and the “gold standard” that such lawyers aspire to, according to Ted Olson of Gibson Dunn & Crutcher, another member of that guild. Tapes of Roberts’ arguments before the Court — he delivered 39 of them — bear out what numerous contemporaries recount: He seemed to anticipate every question, and responded instantly in complete, grammatical sentences salted with down-to-earth analogies and an occasionally wicked wit.

Since 2003, Roberts has been working the other side of the lectern, first as a federal appeals court judge and then, since September 2005, as the 17th Chief Justice of the United States. Just 50 when he assumed that post, Roberts became the youngest Chief Justice since John Marshall was appointed to the job by President John Adams in 1801. With good health, Roberts could surpass Marshall’s record as the longest-serving Chief Justice (34 years) in March 2040. Along the way he’ll have a fair shot at surpassing in stature every Chief Justice except Marshall (who wrote Marbury v. Madison, the bedrock 1803 opinion establishing that the Supreme Court is empowered to strike down acts of Congress that in its view conflict with the Constitution).

“He’s going to go down as an absolutely historic figure,” predicts Goldstein, who co-heads the litigation department at Akin Gump Strauss Hauer & Feld and is also the publisher of, an authoritative court-watching site. “John Roberts is the leader of a Court with five solidly conservative votes for the first time in its modern history,” he continues. “He’s an incredibly telegenic, energetic, thoughtful person, a great speaker — but in addition he has the fifth vote. So while … the [Chief Justice William] Rehnquist Court was more conservative than the [Chief Justice Warren] Burger Court, which was more conservative than the [Chief Justice Earl] Warren Court, it’s the Roberts Court in which the rubber will hit the road.”

[. . .]

The advocate’s podium at the Supreme Court, around which so much of Roberts’ career has revolved, is closer to the bench than at other appeals courts. The nine-Justice bench is divided into three segments, with each flank jutting toward the advocate as if to surround him.

The advocate typically gets only a few sentences into his presentation before he is interrupted by a volley of questions from all angles, literally and figuratively. Because of the courtroom geometry, the advocate can see only about three Justices at a time, so he’ll often be literally blind-sided. He’ll identify the Justice by voice and then pivot to address him or her.

Though practices have varied over time, 45 questions per half-hour argument is about average, and 80 is not unheard-of. The clock is ticking, and a white podium light goes on when the advocate has five minutes left, a red one when his time is up. The questions are sharp, probing, confrontational, and sometimes sardonic. The advocate must respond directly, while striving to keep a cordial demeanor.

While performing those mental and emotional feats, the advocate is forever calculating. “You have to think not just how the answer to this question is going to work,” says Olson, “but what that’s going to mean for other yet unasked questions. And you don’t want to please one Justice and alienate two others at the same time.”

When Roberts was preparing an oral argument, he would write down — usually longhand, using a pen and a legal pad — hundreds of questions that he might conceivably be asked. He’d ponder and refine the answers in his mind. Then he’d write the questions on flash cards, shuffle them, and test himself, so he’d be prepared to answer any question in any order.

In a talk to oral advocates in 2004, Roberts urged them to approach their craft with the mindset of a medieval stonemason. “Those masons — the ones who built the great cathedrals — would spend months meticulously carving the gargoyles high up in the cathedral,” he told them, “gargoyles that when the cathedral was completed could not even be seen from the ground below. The advocate … must meticulously prepare, analyze, and rehearse answers to hundreds of questions, questions that in all likelihood will actually never be asked by the Court. The medieval stonemasons did what they did because, it was said, they were carving for the eye of God … 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 mundane 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.”

Read the whole thing, which contains many more encomiums to the Chief’s intellect and work ethic. To be fair to the port-side, I guess that if I were confronted with a Chief Justice so skilled, so smart, so diligent, and on the opposite side of me concerning the issues of the day, I too would be desperate for a way to send him to the bench.

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