Editor’s Note: This is the first of several profiles of the lawyers who will go before the Supreme Court in each of the four arguments scheduled later this month on the Affordable Care Act.
Robert Long’s career as a Supreme Court advocate got off to a bumpy beginning in October 1990.
He was scheduled to argue his first case as an assistant to the solicitor general in a bankruptcy case named Grogan v. Garner. But he had to overcome a small problem. Long had been a lawyer for a few months shy of three years — the required minimum for admission to the Supreme Court bar. So the SG’s office filed a routine motion asking the Court to allow Long to argue pro hac vice — for that time only.
On the Friday before his scheduled Monday argument, the Court denied the motion – a rare rebuke that had nothing to do with Long’s qualifications, but was viewed at the time as a reminder that the office should file such motions earlier than it had in Long’s case. The office hastily substituted a deputy SG known as a quick study: John Roberts Jr., who probably had a lousy weekend but ended up on the winning side of a unanimous decision.
That was 16 arguments ago for Long. And Roberts, now chief justice, clearly has not held a grudge. Long, the chair of Supreme Court and appellate litigation practice at Covington & Burling, was picked by the Court last November to argue before the justices on March 26, the first of three historic days in which the Court will consider the constitutionality of the Affordable Care Act.
The Court asked Long to make the case that the challenge to the massive health care is premature and should be barred altogether because of the little-known Anti-Injunction Act, which prohibits suits against a tax before it is collected. After first arguing that the law applied to the health care challenges because of the tax penalty imposed on individuals who don’t purchase health insurance, the Obama administration abandoned that assertion, leaving no one to argue that it does apply.
In routine cases in which one side walks away from its prior argument, the Court usually appoints a young former Supreme Court law clerk who has never argued a high court case to step in; that is how Roberts got his start, as did Maureen Mahoney.
But this time the Court, in one of several signals it has given of the gravity of the health care cases, picked a seasoned veteran. On the same day last November when Long was appointed, the Court also named another frequent advocate, H. Bartow Farr III of Farr & Taranto, to make a similarly orphaned argument on the severability of challenged provisions of the health care law. Long and Farr share other characteristics that may have been desirable to the Court; neither has a high public profile compared to other advocates, and both are comfortable with highly technical legal issues. “Bob never gets riled,” said Covington colleague Theodore Metzler. “And he’s not a partisan at all.”
The call from the Court’s deputy clerk Chris Vasil came out of the blue, said Long. Vasil asked Long if he could do the argument if the Court appointed him. Without hesitation Long said he would, unless his firm was conflicted out because it had clients with a direct stake in the case. “My view was that if I was able to do it, I should absolutely do it,” he said, no matter what else was on his plate. Finding no firm conflict, Long said yes, and the appointment was announced.
Long calmly acknowledges that he will be part of a “once-in-a-lifetime case,” because of the magnitude of the issues. But he is approaching it like any other argument. Recalling the words of John Minor Wisdom, the legendary U.S. Court of Appeals for the 5th Circuit judge for whom he clerked in 1985, Long said, “You have to pay attention to the record.” Wisdom told Long that clerks just out of law school are attracted to lofty legal issues, but the facts and precedents are fundamental. Long also clerked at the high court for Justice Lewis Powell, Jr.
In the health care case, Long said that when he began studying the record, “I started from absolute zero.” At first he was not even sure which law was the basis of the argument that the challenges to the law were jurisdictionally barred. But with support from the firm and help from colleagues Emin Toro, Mark Mosier, Henry Liu and Danielle Barbour, he wrote the brief requested by the Court and is preparing to stand before the Court for 40 of the 90 minutes the Court has allotted for the Anti-Injunction Act part of the health care cases.
When he does argue, Long will wear the same “nondescript” gray tie he usually dons for the occasion. And his tie may match his argument style, which Long himself describes as “a just-the-facts approach.” He adds, “I avoid flash and I avoid rhetoric.”
Tony Mauro can be contacted at [email protected].
