SUPREME COURT NOTEBOOK: When lawyers don’t matter

WASHINGTON — Chief Justice John Roberts once famously and controversially described a judge’s role as akin to an umpire who merely calls balls and strikes.

On Wednesday, Roberts offered a new take on that argument in a Supreme Court case about whether lawyers who sued to force changes in Georgia’s foster care program could receive extra pay for their efforts.

A federal judge awarded the lawyers an extra $4.5 million on top of the $6 million they were due under a formula. U.S. District Judge Marvin Shoob said their work was the best he’d seen in 27 years on the bench. Georgia appealed Shoob’s decision.

Roberts was skeptical of Shoob’s reasoning and the argument in defense of the extra money, which the court has previously said could be paid in undefined exceptional circumstances.

“The results obtained under our theory should be what the law requires, and not different results because you have different lawyers,” Roberts said.

He said a judge who suggests otherwise appears to be saying, “‘If you weren’t there, I would have made a mistake on the law.’”

Paul Clement, the former top Supreme Court lawyer for the Bush administration, replied that capable lawyers can affect the outcome, a point not seriously in doubt in a court that regularly hears from the same band of high-priced appellate lawyers.

Finally, Roberts said good-naturedly: “Maybe we have a different perspective. You think the lawyers are responsible for a good result, and I think the judges are.”

Clement responded, “And maybe your perspective’s changed, Your Honor.” Roberts was a top Supreme Court advocate before he became an appellate judge, earning more than $1 million in his final year in private practice.

Another unusual aspect of the argument was the concern among some justices that some federal trial judges might run wild awarding exorbitant attorney’s fees in civil rights cases.

“I see no way of policing it, and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys, because they think they generally do good work,” Justice Samuel Alito said. “This is not like private litigation where the money is coming out of the pocket of a corporation. It’s coming out of the pocket of taxpayers. So that is very troubling.”

The judges Alito was referring to are confirmed by the Senate for lifetime appointments, just like Supreme Court justices.

Only one justice, Sonia Sotomayor, has been a federal trial judge and she appeared more willing to uphold the judge’s award in this case. The eight others served on federal courts of appeal, where they spent their time reviewing the work of trial judges.

By Justice Stephen Breyer’s calculations, the $10.5 million award translates into roughly $350 an hour, or $700,000 a year for a lawyer who works 2,000 hours annually.

“You say to a taxpayer, ‘You are going to pay this’ and that’s more money than 99 percent of the taxpayers hope to see in their lives,” Breyer said. “Wow.”

The justices earn slightly more than $200,000 a year.

Breyer wanted to know what would be wrong with simply paying the lawyers in this case generously. “I am tempted to think: Well, very high is enough. You don’t need very, very, very high,” he said.

Clement sought to allay Breyer’s concerns by noting that payment rates differ around the country and lawyers in civil rights cases are only compensated if they win and then not at the most expensive lawyer’s rate, but some average.

Still, the justice remained troubled by the idea. Later, he said legal fees have increased far faster than inflation over the past 30 years. “I think the discrepancy between these top legal fees and … the average wage for a family of four has changed quite a lot,” Breyer said.

Clement said Congress set up a system to allow federal judges to set compensation for lawyers in civil rights cases as a way to get skillful advocates to take on those cases instead of just sticking with other, more reliably lucrative legal work.

The justices will not hear another case until early November. But four of them, Justices Ruth Bader Ginsburg, Antonin Scalia, Roberts and Breyer, are heading to London to take part in ceremonies marking the opening of Britain’s new Supreme Court.

Unlike the American version, the British court will not have the power to strike down legislation. But the decision to remove the highest court of appeal from Parliament’s House of Lords and install it in its own building was meant to emphasize the separation of governmental powers.

The justices’ airfare is being paid by the court, out of funds collected from lawyers who must pay a $200 fee to become members of the U.S. Supreme Court bar.

While in London, the justices will stay at the American ambassador’s residence.