The Nine [145]
Roberts decided his future was in Washington, not New York, and he moved to the capital just in time to join in the Reagan revolution. He arrived in William Rehnquist’s chambers as a law clerk in the summer of 1980, when the young associate justice was a relative outsider on a Supreme Court that was still dominated by the liberal William Brennan. But conservatives were ascending, and Roberts thrived. After his clerkship, he spent four years in the office of Reagan’s White House counsel, where he earned a reputation for brilliance and good humor. His plainspoken memos, preserved in the Reagan Presidential Library, display wit, common sense, and conservative politics in equal measure. For example, regarding a proposal by Chief Justice Warren Burger to lighten the workload of the Supreme Court by the creation of a new intermediate appeals court above the existing circuit courts, Roberts made this tart observation: “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.”
With perfect timing, Roberts left the Reagan White House shortly before the administration nearly imploded in the Iran-Contra scandal, and he established himself as a successful appellate litigator at the distinguished Washington firm of Hogan & Hartson. With the election of the first President Bush in 1988, Roberts returned to government, this time as the principal deputy to Solicitor General Kenneth Starr. Roberts’s easy manner, combined with his vast intellect, made him a favorite of the justices, and he ultimately came to argue thirty-nine cases, far more than any other nominee in the Court’s recent history. Such was Roberts’s reputation that in 1992, at only thirty-seven, in what would be the last year of the 41st presidency, he was nominated to the D.C. Circuit.
Then, for the first time in his life, Roberts came up against something he couldn’t overcome. The Democrats who controlled the Senate sensed victory in November and essentially shut down the confirmation process. Even then, Roberts looked like Supreme Court material, so the Democrats were especially pleased to block his promising judicial career. With Bush’s defeat in 1992, Roberts returned to Hogan & Hartson and, in all likelihood, a career of gilded obscurity in corporate law.
Roberts’s failure to win confirmation to the D.C. Circuit in 1992 turned out to be a lucky break. For the next eight years, he developed perhaps the best Supreme Court practice in the United States, mostly representing large corporations in business disputes with one another or with the government. Almost every year, Roberts had several arguments before the justices, and he also filed a steady stream of cert petitions and amicus briefs. (Not incidentally, he also made approximately a million dollars a year.) Roberts generally steered clear of the political controversies of the Clinton years, declining to participate in any investigations of the White House and refusing even to become a prominent talking head about impeachment. His contribution to Bush’s legal strategy in the Florida recount was important but low profile. A natural reticence and skill at avoiding enemies kept him largely out of public view. Still, among his former colleagues in Republican politics and law, Roberts retained a golden aura, even without having established a public record of partisanship. Miguel Estrada used to advise young lawyers coming out of the solicitor general’s office, “Go work for John G. Roberts. The ‘G’ is for God.”
If Roberts had been confirmed in 1992, of course, he would have amassed an extensive paper trail of controversial decisions on the D.C. Circuit by the time George W. Bush took office in 2001. Instead, Roberts