The ostensible topic of a recent argument before the Supreme Court was lawyering, but the real subject turned out to be judging. An exchange between Chief Justice John G. Roberts Jr. and one of the lawyers was illuminating.
The lawyer, Paul D. Clement, was representing the legal team that had won improvements in Georgia’s foster care system on behalf of thousands of foster children. The federal district judge who presided over a settlement with the state had found the lawyers’ performance so “superb” and “truly exceptional” that he ordered Georgia to pay them an extra $4.5 million in legal fees on top of the $6 million fee calculated under a standard formula. The question in the case, Perdue v. Kenny A., was whether the additional fee was justified.
It was fully justified, Mr. Clement said in oral arguments last month, given the complex lawsuit’s extraordinarily successful outcome. “This is that rare case where everything that was asked for in the complaint was obtained,” he said.
“I don’t understand the concept of extraordinary success,” Chief Justice Roberts objected. “The results that are obtained are presumably the results that are dictated or commanded or required under the law.” The chief justice said the outcome of a case “should be what the law requires, and not different results because you have different lawyers.” Could a district judge really suppose, he wondered, that “if it weren’t for how good you are I would have made a mistake?”
Forget, for a moment, the fact that clients once hired John Roberts and willingly paid his top-of-the-scale fee because they knew he would do a better job than a lawyer picked at random from the Yellow Pages. Forget also that Mr. Clement, formerly the Bush administration’s solicitor general, is himself such a highly regarded advocate that he received a multimillion-dollar package to join his current law firm. (There were knowing chuckles in the courtroom at his deadpan response to the chief justice: “I defer to you, but I’m not sure that comports with my experience.”)
What was most striking about the chief justice’s invocation of the law’s commands was how similar he sounded to his newest colleague, Justice Sonia Sotomayor. At her Senate confirmation hearing in July, Judge Sotomayor opened her testimony by intoning the mantra that “the task of a judge is not to make the law — it is to apply the law.” She then went on to elaborate: “My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”