Since I see everyone and David O. Markus is commenting on Jeffrey Toobin's profile of Chief Justice Roberts, I might as well put my two crappy cents in.
For us civil litigators, here's the part I found interesting:
In one respect, Roberts’s series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts’s circle of professional peers consisted entirely of other wealthy and accomplished lawyers.Hey, there's nothing wrong with that!
But here's the larger point:
In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals.More than a substantial portion and more than regular corporate clients -- if you could afford to hire Hogan & Hartson in DC, you are a Fortune 100 company with a serious legal problem.
So in my view Roberts' experience as a lawyer has been exposure to a high-end slice of the overall world of civil litigation, and from a fairly narrow perspective -- that of being in a position to bill substantial hours working for a well-heeled corporate defendant in high-stakes civil litigation. And this is important and valuable.
Still, Roberts has never worked on a contingency case, never represented a poor person who has been victimized, never sued a corporation for a wrongful act, and never had to run a law firm.
Again, there's nothing wrong with that -- many of our better judges had far more limited experience and skill sets than Justice Roberts.
But you can see where Roberts came from in his current interest in antitrust and securities matters, and with rulings like Twombley it's not hard to see where Roberts' heart lies. Would his views be different if he was exposed to a greater variety of civil law perspectives?
Looking over the short list of potential Obama nominees, I don't see anyone on deck who could counterbalance the BigLaw corporate orientation of the Chief Justice in civil matters, but then no one seems to care about civil litigation when it comes to Supreme Court nominees anyways.
14 comments:
SFL - is it true that Roberts "never represented a poor person who has been victimized, never sued a corporation for a wrongful act," or are you taking liberties and extrapolating from verified facts? Also, I don't find Twombley offensive. I am as liberal as they come - until I met antitrust class action plaintiff lawyers. I mean, I don't hate them ALL. Heck, I even have a few friends who are antitrust plaintiff class action lawyers. And I think Adam Moscowitz is a heck of a nice fellow. But by and large , my experience is - and I am not big law - this is strike litigation, low -brow stuff, dressed up as high end plaintiff's work. And the end result is massive costs to defendants, based on nothing more than a fishing expedition and the hope for big dollars at the end. For the platiff's lawyers. Do you really think the deans of Harvard and Yale law school are not going to counterbalance Roberts views, which you correctly point out were formed in part based on his experience at big law representing well heeled corp defendants?
Great comment, thanks.
I do know of one pro bono case that Roberts provided assistance on while at H&H at the appellate level.
But I think what I say about his overall experience there is fair. If he did help in preparing a lawsuit I would imagine it was a Lanham Act type claim or business tort against another corporation (anyone reading from H&H -- correct me if I'm wrong).
I didn't say Twombley was offensive and personally don't think it was, but it highlights an orientation that is consistent with his corporate law background.
I do believe some of the district judges have run with Twombley to impose value-based assessments of litigation at the motion to dismiss stage. It's kind of a knee-jerk thing now to raise a Twombley argument in every motion to dismiss being filed in federal court nowadays. I know many law clerks are sick to death of it.
As for the High Court picks leaked or speculated about so far, you may be right but the media's focus on big-ticket issues like abortion, death penalty etc. means we may never know until he or she gets onto the bench.
Amazing bassist, but not a handsome man.
11:21, come on , we've seen too much massive corporate fraud to just dismiss antitrust cases as 'strike' litigation.
SFL -
Given that the reach of Twombley was just expanded (in Iqbal), you may need to invest in antacids. And if the stock tanks, you can always call that Moscowitz guy!
'trane
Representing big business clients can give one particular insight into the interaction of law and economics, as well as government power. I don't think that these issues necessarily predispose one to be anti-plaintiff so much as anti-waste of judicial resources.
I don't know if this is entirely appropos to the post, but below is some advice the future Chief Justice wrote when he was with Hogan & Hartson (I kind of like the last sentence--judges, please pity half of us!):
Be particularly skeptical of advice on how to argue an appeal from appellate judges....
[M]ost judges give good advice on how to win a winning case. They all say to focus on the statute in a statutory interpretation case, to discuss the facts fairly and objectively, to describe the holdings of any controlling cases. Good advice if the statutory language is helpful, the facts support your position, and the precedent leans your way; perhaps not so good advice if the opposite is true. Judges have no interest in the court reaching a “wrong” result, but fifty percent of clients do.
John G. Roberts, Jr, Thoughts on Presenting an Effective Oral Argument, School Law in Review 1997, 7-1
'trane, welcome back old friend.
Okay, you too swlip.
Would his views be different if he was exposed to a greater variety of civil law perspectives?
Nay.
Thanks, SFL. Good to be here.
Although there is a nagging Groucho vibe . . .
'trane
'trane, aka "Sunshine."
So you're beef is really with opportunistic defense attorneys, and district judges, seeking to close cases, utilizing language from Twombley ( I always think of Baby Bear from Sesame Street when I argue the Twombley case, because I feel like it should be "Trombley") when it may not be controlling, and not so much with Roberts. We are all shaped by our background and experiences. Me? I'm an ass man, all the way. Which may explain why I am fond of Adam Moscowitz. And I love fishing expeditions. But I am unwilling to label Roberts. Yet. Sure he is no friend of the environment, the accused, or free speech (except when butchering the oath of office of President of these United States.) But he has three sisters. (I have three sisters. Its impossible to be a total asshole, with three sisters.) He studied history and art. He adopted two children. His father worked in a steel plant, rising to manager. He was raised in small town Americana. He clerked for Rehnquist. These are hardly elitist life esperiences. While on the DC circuit, he authored 49 opinions, which garnered only 2 dissenting opinions. And he only authored 3 dissents of his own. For a bench "in the limelight" and politicized, the aformentioned does not smack of partisanship, or laziness. There are a lot of worse draws. So the Jury is still out, I think, on Justice Roberts. And that is always better than the alternative.
PS - you are absolutely correct. The preoccupation with special interest hot button issues prevents a true vetting of the individual to be crowned Justice.
3:15, thanks.
See, this is why he is Guest Blogger.
This must be old-timers day here at the blog. Toobin lays out a powerful case and I hope he's wrong but it sure don't look that way yet fellas.
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