Associated Press - John Roberts' Style: Measured Tones & Analogies

July 26, 2005
By NANCY BENAC, Associated Press Writer

John Roberts is widely acknowledged to be one of the nation's best lawyers at arguing before the Supreme Court, one of the most intimidating settings an attorney can encounter.

But it's not soaring oratory that is the key. Those who have watched him in action including lawyers who've argued cases against him credit his relentless preparation, conversational style and an ability to steer the dialogue back to his intended theme despite a barrage of questions.

Then there's the luck factor: Roberts often touches a statue of former Chief Justice John Marshall on his way into court. And Roberts suggests he's not above laying an occasional trap for an opponent.

Roberts has argued 39 cases before the Supreme Court, roughly half in private practice and half while working for the government. He has won 25.

"A Supreme Court justice once pulled me aside and told me he was the most effective oral advocate ever to appear before the court," said J. Warren Gorrell Jr., chairman of Hogan & Hartson, the law firm where Roberts worked two stints totaling about 13 years. "Now that's saying something."

Roberts' abilities should serve him well on two counts: He'll be hard to rattle when he goes before the Senate Judiciary Committee for his confirmation hearing late this summer. And, if confirmed as the nation's 109th justice, he'll join colleagues who apparently already think well of him.

Roberts' cases before the high court ran the gamut, from hot-button issues like abortion and sex discrimination to more obscure matters. For example, he argued unsuccessfully against a prison inmate's complaint that he was exposed to secondhand cigarette smoke and successfully on behalf of a man who had cheated the government of $585 and faced a civil fine of $130,000 heaped on top of earlier criminal penalties. In the latter case, Roberts convinced the court that the man had been improperly punished twice for the same offense.

In the prison inmate's case, Roberts got a chuckle from the court and showed his knack for effective analogy when the justices asked if seeking to avoid exposure to secondhand smoke wasn't akin to seeking to avoid exposure to asbestos.

"When we go to a restaurant they don't ask, 'Do you want the asbestos section or the non-asbestos section,'" Roberts told the justices. "They do ask, 'Do you want smoking or nonsmoking.' Smoking is a matter of personal preference."

Roberts participated in that case as a deputy solicitor general in 1993, when he would have cut a striking figure in the late 19th century style dress that is customary courtroom attire for the solicitor general: gray cutaway morning coat, striped pants, ascot and vest.

Each case is different, Roberts says, and requires its own strategy.

"How to play your hand depends largely on the cards you are dealt," Roberts wrote in a 1997 article offering tips for effective oral arguments. His advice ranged from the abstract to the nitpicky. "Make sure whatever you bring fits on the lectern," he advised.

Former Solicitor General Theodore Olson, himself an expert at oral argument, said Roberts is quick on his feet in fielding the steady stream of questions that come from the justices, and has a conversational but not-too-informal tone that the justices like.

"He got a very pleasant demeanor about him; he seems very accessible," said Olson. "He doesn't lose his poise."

Olson argued against Roberts in a case challenging Hawaii's practice of holding Hawaiians-only elections for the Office of Hawaiian Affairs, and won by a 7-2 ruling in 2000. Roberts lost his argument that the voting arrangement was proper.

Three sentences into his oral argument, Roberts got a sign his case was in trouble. "Well now, just a minute, ..." a justice interjected. And over the next half-hour, Roberts fielded 52 skeptical questions without losing his cool.

"I'm sure the loss had nothing to do with John's argumentation," said Olson.

Maureen Mahoney, a Washington lawyer who worked with Roberts in the solicitor general's office, credits Roberts for, among other things, speaking in complete sentences. That might seem like a low threshold for praise, but it is anything but a given in the face of rat-a-tat questioning from the justices.

"If you read his transcripts you will see that he is articulate and fluid in his presentation," Mahoney said.

Lawyer Jay Sekulow, who has argued both beside and against Roberts, said he always studies transcripts and audio tapes of Roberts' past oral arguments when he's preparing for an appearance before the court. "One of John's greatest gifts," he said, "is to be able to weave the answer to a question back into his theme."

Roberts had a reputation as a gracious winner and loser -- but it is also clear he plays to win.

In his article on effective oral argument, Roberts suggested a strategy to throw off an adversary who was going to have the last word in court. By tossing out an indirect challenge that the opponent will feel compelled to address, Roberts wrote, "this can completely disarm your adversary, who has no doubt been preparing an effective rebuttal."

Gregory Garre, a colleague of Roberts' at Hogan & Hartson, said Roberts conducted three or four practice sessions before any appearance before the high court, and kept a notebook in which he jotted down possible questions he might confront. Then he would craft "an airtight response that couldn't be picked apart by another justice," Garre said.

Elsa Cole, general counsel for the NCAA, said that when Roberts represented the athletic association in a sex discrimination case in 1999, "there was not a question that he had not anticipated and was prepared to answer. ... We got a decision within a month, 9-0 in our favor. Can you do any better than that?"

It doesn't always go that way, however.

At a 2002 symposium, Roberts recounted the thrashing he got during a 1994 oral argument against then-Solicitor General Rex Lee in which it was immediately apparent that the court was going to rule against him unanimously on three grounds.

"They proceeded to beat me over the head for a half hour," Roberts recalled. "I staggered to my seat and then Rex got up. And early on into his argument, Justice (Sandra Day) O'Connor in a very uncharacteristic burst of cruelty asked Rex Lee why he had neglected to raise a fourth argument which would also be a winning argument. Rex turned and looked down at me, literally and figuratively, and, with a wink that I am sure was perceptible only to me, said something to the effect that he did not want to be accused of piling on."