Chief Justice Dons His Umpire Uniform Again

If you thought Chief Justice John G. Roberts Jr.’s remarks about judges being umpires who are “servants of the law” was just a cute soundbite designed to win confirmation to the Supreme Court, then think again.
Although not talking about judges, he touched upon a related issue about whether lawyers can affect the outcome of cases at this morning’s argument. It was a case concerning whether public interest lawyers can get enhanced attorneys’ fees based purely on exceptional performance (Perdue v. Kenny).
Roberts seemed to be questioning whether lawyers really make much difference because it’s only the law itself that matters.
“I don’t understand the concept of extraordinary success or results obtained,” said Roberts, who was an extraordinarily successful appellate lawyer earlier in his career. “The results that are obtained are presumably the results that are dictated or … required under the law.”
He went on to say that cases are resolved on the law and not on whether the parties involved have good or bad attorneys.
“The results obtained under our theory should be what the law requires and not different results because you have different lawyers,” he added.
Paul Clement, a former solicitor general during the Bush administration who was representing the public interest lawyers that won the enhanced fees, took the bait.
“Well, Mr. Chief Justice, I mean, I defer to you , but I’m not sure that comports with my experience,” he responded.
In Clement’s view “the quality of the performance and the results obtained do depend on the lawyers’ performance.”
That led to the following exchange in which Clement touched upon Roberts’ earlier career as a highly-paid advocate:

Roberts: Maybe we have a different perspective. You think the lawyers are responsible for a good result and I think the judges are.
Clement: And maybe your perspective has changed, Your Honor.

Cue laughter. But the debating contest wasn’t over. Next, Roberts – perhaps in a dig at Clement’s own involvement in the case – questioned whether other factors should be taken into account when considering fees, such as when a law firm takes on a high-profile case to improve its image. Some even offer to do the work pro bono, he added. Clement conceded the point but had another punchline ready:
“Sometimes, I think you get what you pay for,” he said. “But that’s a different subject.”

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