Prior Jobs and Perspective

Court watchers like little better than trying to get inside the Justices’ minds.  Justice Ginsburg spent her entire pre-judicial life fighting for women and authored United States v. Virginia (striking VMI’s male-only admissions policy); Justice Breyer was robbed at machete-point in the Caribbean and subsequently accelerated his drift towards a narrower reading of Fourth Amendment rights; Justice Scalia is Catholic and that has to mean everything–the list goes on.  Journalists have even made hay of the fact that Justice Alito grew up rooting for the then-hopeless Philadelphia Phillies.  But the Chief Justice seems to go strangely under-analyzed.  Whenever he is mentioned, it is noted that he is a man of deep faith and that his professional life was spent in service of primarily high-dollar business clients, and the analysis, such as it is, ends there.

Today presented an unexpected twist in the Chief’s psychological profile, and one that reveals a practicality that continues to emerge in some, though certainly not all, of his rulings.  Cf Shelby County (“I’m sure Congress can fix it!”).  The Court decided T-Mobile South, LLC v. City of Roswell, Georgia.  It presented a seemingly dull issue–under the Telecommunications Act of 1996, which requires that a city’s decision to deny construction of a wireless tower be “in writing and supported by substantial evidence contained in a written record,” did the city of Roswell comply when it denied T-Mobile’s request in a letter and later released the minutes of its town hall meeting explaining the result?  In one of the stranger lineups you’ll see outside of a Haight Street pickup basketball game, Justice Sotomayor found for T-Mobile, joined by Justices Scalia, Kennedy, Breyer, Alito, and Kagan.  The Court reasoned that because the city ruled against T-Mobile several weeks before the written record of the relevant town-hall meeting was available, T-Mobile was denied the avenues of judicial review that the Telecommunications Act envisioned. The Chief Justice dissented, joined by Justices Thomas and Ginsburg.  His reasoning contained a healthy dose of common sense, but what jumps out most is the influence that Roberts the elite litigator had on Roberts the Chief Justice.  He lambastes the Court’s reasoning, and the lynchpin of his argument is essentially this:  T-Mobile’s lawyers are really good, and T-Mobile has enough resources for them to do their job well.  Or in the Chief’s words,

The Court also supports its timing rule by saying that the company whose application is denied needs the time to carefully consider whether to seek review. But cell service providers are not Mom and Pop operations. As this case illustrates, they participate extensively in the local government proceedings, and do not have to make last-second, uninformed decisions on whether to seek review.


This concern [of parties unable to decide if they should challenge a denial] might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods.

And most tellingly, he notes that T-Mobile brought its own court reporter to the hearing and proclaims

I strongly doubt that a sophisticated, well-lawyered company like T-Mobile—with extensive experience with these particular types of proceedings—would have any trouble consulting its interests and deciding whether to seek review before it had received a written explanation from the town.

To the extent that people focus on the Chief’s corporate background, they tend to use it to support a theory that he is unacceptably cozy with big business.  But this opinion reveals an interesting, and perhaps unanticipated, flip side of the coin.  The Chief is the only current member of the Court with elite-level litigation experience in Biglaw (he was a partner for years at Hogan Lovells, then Hogan Hartson, a top-notch DC firm).  Justice Scalia spent about six years at Jones Day, Justice Kagan a few at Williams & Connolly.  But Roberts is the only one to rise to the top of private-interest litigation.  He knows the resources available to these litigants and their lawyers.  And he displays a refreshing practicality in understanding when those resources do, and do not, serve to level the judicial playing field. In law, psychology matters–nine people simply cannot divest themselves of their sum of life experiences when donning a black robe.  But the Chief’s psyche shows that every experience can produce more than one outcome.  The elite, millionaire, Biglaw litigator displays not only an occasional sympathy for corporate interests–he displays a full knowledge of Biglaw’s resources and of the resulting standard its clients should be held to.  We don’t know which side of the coin will come up, and in what case, but the answer to that question may continue to yield surprises at One First.

Prior Jobs and Perspective