Colleagues Recall Chief Justice's Early Days
His skills as a litigator still serve him on the court.
Still, sometimes Roberts' self-assurance backfired. On behalf of a private client in a 1998 Federal Credit Union Act case, Roberts was quick 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 defended his point, and Roberts lost Kennedy's vote and the case, 5-4. Roberts' 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 his missteps. 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 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, to respond appropriately.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. 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."
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 can be contacted at email@example.com.