Stuart Gerson Quoted in Article, “What Kind of Appellate Lawyer Was Justice Roberts?”

The American Lawyer

Stuart Gerson, a Member of the Firm in the Litigation and Health Care & Life Sciences practices in the Washington, DC, and New York offices, was quoted in an article titled "What Kind of Appellate Lawyer Was Justice Roberts?"

Following is an excerpt:

Ten years after Roberts argued his last case before the court, a close look into his appellate career offers important insights about arguing and winning before the court that he now leads. (Roberts declined to be interviewed for this story.) His approach to advocacy also offers clues to the kind of chief justice he has become. His 2012 decision upholding the Affordable Care Act as a proper exercise of congressional taxing power—while finding it unconstitutional under the commerce clause—can be seen as an extension of the play-the-hand-you-are-dealt pragmatism he used to win cases as an advocate. Incremental rulings on issues like voting rights allow Roberts as chief justice to craft compromises with liberal justices that can be used to move further to the right in the next case—a strategic approach he learned at the lectern as an advocate. ?...

In a way, Roberts's landmark ruling in NFIB v. Sebelius, upholding the Obama health care overhaul on one ground but not the other, while also dealing with Medicaid, is the ultimate index card shuffle as it cobbled a majority together. "Why not coalesce around a minimalist point? If there are grounds to uphold a statute, you look for them. That's what you do," says Stuart Gerson. Now with Epstein Becker & Green, Gerson was a top Justice Department official who worked closely with then—deputy solicitor general Roberts on Supreme Court cases during the George H.W. Bush administration. "He treated the justices the way they viewed themselves," Gerson says of Roberts. "They don't see themselves as politicians in robes, so it was not an exercise in oratory. He engaged them in a conversation."