The Oath by Jeffrey Toobin Page B

more minutes went by … I sat down. I figured that I’d stand up when the President came on the line … A few more minutes went by. Then I heard the muffled laughter outside my door … I put the phone downand went to the little anteroom. In there, of course, were my new colleagues in the White House Counsel’s office, who had placed the phony call from the President. They had a betting pool how long I would stay on hold … Whoever had the 15- to 20-minute slot won that money.”
    Roberts was not a policy maker, of course, but his memos from that era reveal a self-assured and loyal member of the Reagan team. He referred in one memo to Smith to an article that mentioned the “so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution.” For someone who was only twenty-seven when he joined the White House staff, Roberts wrote with unusual confidence. When a Democratic congressman proposed a conference on power sharing among the different branches of government and a report on the subject, Roberts dismissed the idea this way: “There already has, of course, been a ‘Conference on Power Sharing.’ It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the ‘report’ it issued.” In the eighties, the Supreme Court was deciding as many as 150 cases a year, and the justices were laboring under the weight of the caseload. Warren Burger advocated a proposal to add a kind of super-appeals court above the circuit courts, to relieve the justices of some of their burdens. Roberts was not impressed with the idea, writing to his boss, the White House counsel: “While some of the tales of woe emanating from the Court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”
    Roberts spent the last few years of the Reagan presidency beginning his career at Hogan & Hartson, but he returned to government at the start of the first Bush administration, when Kenneth Starr recruited him to be his deputy at the solicitor general’s office. Starr had a genteel style as the government’s principal advocate before the Supreme Court—he was nicknamed the Solicitous General—but the office took a series of strongly conservative stands on the merits. Again, Roberts was following administration policy, but he had no problem signing briefs that called for overruling
Roe v. Wade
and limiting traditional civil rights remedies. As was customary, Starr himself argued the most high-profile cases for the government in this period, but Roberts also became a regular presence before the justices. His earnest midwestern manner—matched, of course, by his keen intellect, sharp wit, and greatmemory—made him an immediate favorite of the justices. Roberts made such a powerful impression in the S.G.’s office that Bush nominated him for the D.C. Circuit in 1992, when he was only thirty-seven years old. The Democratic blockade of Roberts’s nomination was a tribute of sorts as well. Both sides knew even then that he might well be destined for the Supreme Court. Roberts never received an up-or-down vote in the Senate, so he returned to private practice in 1993.
    For much of the Court’s history, cases were often argued by the lawyers who originally represented the clients in the lower courts. Lawyers in the solicitor general’s office were almost the only Supreme Court specialists. But Roberts came of age at a time when Supreme Court advocacy became its own niche in the legal profession. Starting in the 1990s, a Supreme Court bar began to expand, andRoberts was the leading figure in his generation. In all, Roberts had thirty-nine arguments at the Court, and he won about twenty-five of them. (The number is not precise because some cases had mixed or inconclusive results.)
    The professional background of a justice