Lawyer Learns that Roberts Speaks Only for Himself

Off the bench, Chief Justice John Roberts Jr. can be disarmingly modest about the role of the chief justice. He is only one of nine justices, he'll say in public appearances, and he has no authority to tell his eight colleagues what to do -- even though he gets blamed when things go wrong. On Tuesday, that self-deprecating posture was on display on the bench during a brief, surprising exchange at oral argument.

It came during argument in Hertz Corp. v. Friend, an important business case on how to define a corporation's principal place of business for purposes of federal diversity jurisdiction. The debate focused on the various ways federal appeals courts have answered that question. As we reported here, the justices seemed to be leaning toward a simple test of where a company's headquarters or "nerve center" is located -- a test advocated by Sri Srinivasan of O'Melveny & Myers, the lawyer for Hertz. 

The respondent's lawyer Todd Schneider argued against such a standard, and was wrapping up his argument, when he decided to raise another point he had made in his brief: that the Supreme Court did not have jurisdiction to consider the Hertz case because, generally speaking, district court orders remanding a case because of lack of subject matter jurisdiction are not reviewable. That's what had happened at an earlier stage in the Hertz case, contended Schneider, a lawyer with San Francisco's Schneider Wallace Cottrell Brayton Konecky.

"Mr. Chief Justice, did the Court have interest in the jurisdictional argument?" Schneider asked politely. It's an unusual question, because if a lawyer wants to make an argument that's in his or her brief, permission is not needed. Roberts seemed stunned by the question, with a startled look on his face.

"I don't know," Roberts answered finally, with an annoyed tone and an exaggerated shrug of his shoulders. As spectators laughed, Roberts looked at his colleagues as if to encourage others who might want to hear that argument to jump in. Then Roberts said, "I can only speak for one member of the Court, and that one doesn't."

Put in his place but undeterred, Schneider looked around and asked the Court in general, "if the Court has any questions about our jurisdictional argument, I would be happy to answer them." No justice rose to the occasion, and Schneider sat down.

Comments

[Asher]

Did he think it was that weak an argument that he felt he had to ask if they were even interested in hearing it? Not a good way to convince the Court of the seriousness of the argument.

[Joe]

I don't think it was permission -- he just wanted to know if the justices (it was in bad form to ask just the CJ) were interested in this specific topic given he was at the end of his argument.