by Matt Barr

How Roberts fared before the Court

I took a look at 20 (of the "more than 30") cases John Roberts argued before the Supreme Court, taking care to select those in which he appeared on behalf of the U.S. as Acting or Deputy Solicitor General as well as some private practice cases. In all, 13 Justices heard Roberts' arguments in the cases I selected.* The cases selected appear after the "click for more" link on my front page (or at the end of this entry if you're reading it on its own page).

I counted a vote for Roberts' client's position, whether joining the opinion of the Court or concurring in the judgment -- or failing to join the opinion of the Court or concur in the judgment if Roberts lost -- in Roberts' favor. In some cases, Justices concurred in part and dissented in part. In those cases, I "gave" Roberts 0.5 a vote, for ease of calculation.

Here are the percentages of the time Justices voted in Roberts' favor, current members of the Court (excluding O'Connor, who won't serve with him) first, then retired members. Format is percentage-slash-number of cases:

Scalia .825/20
Rehnquist .775/20
Kennedy .750/20
Thomas .750/10
Souter .679/14
Breyer .333/3
Stevens .275/20
Ginsburg .000/3

O'Connor .775/20
White .647/17
Blackmun .471/17
Marshall .400/10
Brennan .200/5

Caveats apply. As we've heard ceaselessly the last few weeks, an attorney, like Roberts arguing before the Court, represents his client, and we can't necessarily glean anything useful about the attorney's own thinking from the positions he argued on behalf of others. In the same vein, Roberts here was often representing the Solicitor General's office of the first Bush administration, so the fact Scalia and Rehnquist, say, voted so often "with" Roberts probably says more about their inclination to side with a Republican President than his lawyer. Finally, remember that the bearing that oral arguments have on a Supreme Court case is indeterminant, and is probably pretty small. That is, it's unlikely even the most skilled advocate will convince a number of Justices he's right independently of their own (and their clerks') research, briefs filed in the case, the record below, and any number of other factors.

Still, the data are instructive. I looked too at the opinions, either of the Court if Roberts' side won or filed dissents if it lost, to see who was articulating the reasoning behind voting for Roberts' position. Including both majority opinions and authored dissents, Rehnquist led the way in these 20 cases with five opinions, followed by O'Connor's and Scalia's four, Blackmun's, Kennedy's and Thomas' two (both Thomas' were dissents) and Brennan's and Stevens' one apiece.

Of Roberts' 14 wins, not one was accomplished without both Rehnquist's and Kennedy's vote. (Only one each was accomplished without O'Connor's or Scalia's.) Conversely, Roberts lost only one case when he got Kennedy's vote, and one and a "half" when he got the Chief's.

In the 20 cases, in which Roberts was after a total of 179 votes (in one case, Justice Souter took no part in the consideration of the case), Roberts' record was an impressive 110-69, including "half" votes.

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