LAWYERS APRIL 10, 2006
Had you been at the U.S. Supreme Court on February 28, you might
have thought you'd wandered into the middle of a revolution. The
first sign the old order was crumbling was the line of 200 people
in front of the building. This was hardly unusual in itself. Many
landmark cases attract throngs of local lawyers, interns from
surrounding offices, even concave-chested high school boys who
would die happy having glimpsed Earl Warren's robe. But there was
something different about these people. They didn't look like they
had dressed for the occasion, or really any occasion at all. The
women wore tight-fitting tops; many of the men sported t-shirts and
blue jeans. There were more baseball caps than at a Yankees game.
Just in front of me at a metal detector, a group of teenage girls
who looked ready for a taping of "Total Request Live" had cut the
line. "How did you get in here?" a guard demanded. "Do you know how
many people are lined up outside waiting to get into this?"
This was case number 04-1544. Or, as it was known to the crowd, the
Anna Nicole Smith case. Smith is the former Playboy playmate who
caught the eye of billionaire oil magnate J. Howard Marshall II 14
years ago while working as a topless dancer. Marshall, who was then
approaching 90 years old, married his 26- year-old sweetheart after
purportedly paying to have her breasts enlarged. The groom died a
mere 14 months after the wedding. And the question that has been
wending its way through the courts ever since is whether Marshall
meant to leave Anna Nicole a portion of his fortune, as she claims,
or whether the millions Marshall showered on her and her breasts
during his life were the extent of his largesse, as her 67-year-old
But, then, no one had come to the Court for a lesson on probate law.
As soon as Chief Justice John Roberts banged his gavel to end the
argument, the entire gallery jumped to its tiptoes to catch a
glimpse of Smith's bleached-blonde tresses. Outside, some 30
cameras were trained on the building's front doors. NBC alone had
dispatched at least three reporters--Pete Williams, its legal
correspondent; Norah O'Donnell, the msnbc White House correspondent;
and Tim Vincent, a New York-based reporter from the tabloid show
Over the last three decades, the legal system has undergone a
dramatic democratization process. Every jealous ex-wife, aggrieved
former burger-flipper, and small-town whiplash victim now has
access to legal talent, and four of the most common words on
television are "have you been injured?" But only recently has
democracy finally come to the Supreme Court. And, contrary to
appearances, it wasn't Anna Nicole who ushered it in. It was a
slight, prematurely graying man who, on the day of the Smith
hearing, was standing near a staircase off the main chamber,
tapping on his BlackBerry. He was perhaps the only person at the
Court oblivious to the mayhem around him, at least until I called
his name. "Hey, man," he said, wearing an impish grin. "Did you
come to see the show?"
Tom Goldstein is the founding partner of Goldstein & Howe, the
world's only law firm devoted exclusively to Supreme Court
litigation. Goldstein happened to be at the Court because he was
co-counsel to E. Pierce Marshall, Anna Nicole's disgruntled
stepson. But the Smith case was the least of his concerns. Last
November, Goldstein had argued Georgia v. Randolph, a Fourth
Amendment case that tested the bounds of permissible search and
seizure. The case had enormous implications for the right to
privacy, and Goldstein was anxiously awaiting a decision. In
addition to Randolph, this term he is either counsel or co-counsel
to more than 10 percent of the Court's entire caseload--including
such important cases as Hamdan v. Rumsfeld, which will decide the
constitutionality of trying war-on-terrorism prisoners before
military commissions, and Randall v. Sorrell, a landmark campaign
At 35, Goldstein has already argued an astounding 16 cases in front
of the justices--making him one of the youngest nongovernment
lawyers ever to reach this mark. But the important thing to know
about him isn't the number of major cases he has handled. It's the
way he has handled them. What most distinguishes Goldstein from his
colleagues in the ultra-patrician world of Supreme Court advocacy
is that he didn't learn his craft at an elite law school or at the
side of a Supreme Court justice. He learned it from the generation
of ambulance- chasers who had already crashed the rest of the legal
world. It was only seven years ago, after all, that Goldstein, not
far removed from his law school days at American University (A.U.),
opened a practice from his laundry room and promptly began
cold-calling prospective clients.
Needless to say, this brashness has not endeared him to the
inhabitants of the world's last great bastion of elitism. Roberts,
a former Supreme Court advocate himself, is on the record deriding
the practice of Supreme Court cold- calling. If you needed a heart
surgeon, Roberts once mused to a reporter, you wouldn't hire the
one who called you out of the blue. According to former clerks,
other justices have shared Roberts's reservations about Goldstein's
entrepreneurial style. Former Justices William H. Rehnquist and
Sandra Day O'Connor were known to look pained when presiding over
Goldstein cases. Many of the clerks themselves--some of the top
legal minds in the country, who exert enormous influence behind the
scenes--apparently feel the same. Each year, they perform an annual
revue, in which they impersonate the justices and a small number of
unofficial fixtures at the Court. It is a sign of both his status
and the scorn he evokes that Goldstein has merited his own personal
roasting. And yet it is Goldstein, and not his detractors, who will
surely win out in the end. In fact, he already has. These days,
almost all but the whitest of white-shoe Supreme Court advocates do
business the Goldstein way.
Since the death of Rehnquist, legal scholars and pundits have
endlessly debated whether or not we're on the brink of a Roberts
Court or an Anthony Kennedy Court (after the swing-voting justice)
or even a John Paul Stevens Court (after the liberal icon who is
its longest-serving member). And, if the measure of influence is
one's effect on the Court's jurisprudence, then that's a debate
that rightly continues. But, if the proper measure of influence is
the extent to which one has shaped the Court's norms and culture,
then there is no debate at all. It's not Roberts's Court, nor even
Stevens's. It is Tommy Goldstein's.
If you were to poll the justices about the model Supreme Court
advocate, the winner of that poll would very likely be a man named
Carter Phillips. Phillips does not work out of his laundry room. He
did not receive his law degree from American University. And he
does not, under any circumstances, make cold calls.
What Phillips does do is run the Washington headquarters of the
1,600- attorney firm Sidley Austin. At 53, he is also the firm's
top Supreme Court advocate. Arguing before the Court is considered
the most intellectual and least commercial enterprise in the legal
profession, which contributes to its patrician ethos. And, this
April, Phillips will do it for the fiftieth time. Phillips ascended
to this lofty perch along an exceedingly conventional path:
Northwestern University, where he studied law; the Supreme Court,
where he clerked for Chief Justice Warren Burger; and the U.S.
government, where he was a protege of Solicitor General Rex Lee.
Last fall, Phillips became the first lawyer to argue before newly
confirmed Chief Justice Roberts, who is a longtime friend.
Phillips greeted me from behind a mahogany desk in his corner office
in Sidley's steel-and-glass building, only a few blocks from the
White House. He was dressed in a sleek, bluish-gray suit, a
starched white shirt, and a shimmering blue tie. I had asked him to
discuss the cultural shift within the Supreme Court bar generally,
but he brought up Goldstein unprompted only a few minutes into our
conversation. Phillips couldn't say for sure how many other firms
aggressively solicit business. But he did know one thing:
"Obviously Tommy Goldstein has. He doesn't blink an eye about it."
It turns out even Carter Phillips isn't entirely insulated from
Goldstein's new world order, and he illustrated this with a tinge
of bemusement. "I've had a couple cases where I was retained by the
client to handle the case, and another firm went to them and
offered to take on the representation for free. Which I thought was
a little strange, given that the client had already retained me."
(Phillips was quick to add both that the client stuck with him and
that the rival firm was not Goldstein's.)
There is no doubt that Goldstein's approach represents a break in
the rich history of Supreme Court advocacy. From about the late
eighteenth century until about the mid-'80s, there was, at best, a
tiny circle of lawyers who regularly argued cases before the Court.
As Kevin T. McGuire notes in his book The Supreme Court Bar, these
lawyers were a rarefied bunch. Francis Scott Key (of "Star-Spangled
Banner" fame) was one of the great early advocates. So was Daniel
Webster, who argued an astounding 168 cases during his career. If
you were a man of sufficient stature, you might call on Key or
Webster to handle your case. But the process was highly informal.
If you had to ask how to hire them, then it probably wasn't
The first major shock to this system came when a handful of former
Reagan- era lawyers left government to enter private practice. Both
the business and the legal worlds had become exceedingly complex,
and this created an opportunity to make a living exclusively from
Supreme Court litigation. The most famous of these early movers was
Phillips's mentor, Rex Lee. Lee had argued dozens of cases before
the Supreme Court on behalf of the Reagan administration. When he
joined Sidley, he marketed himself explicitly as a Supreme Court
specialist. But Lee and his rivals had fancy pedigrees and hard-
earned reputations. They disdained ambulance-chasing; business would
come to them. With a few exceptions, this norm more or less held
until Goldstein opened his doors in 1999.
Though Phillips said he is a fan of Goldstein, he was not quite
ready to trade places. Phillips told me that what attracts
big-named clients to Sidley, in many cases, isn't his own sterling
reputation, but all the legal firepower he has at his disposal. "If
you look at the number-two at Sidley, it's going to be ... a Rhodes
Scholar, a former Supreme Court clerk--an extraordinarily
credentialed, very experienced lawyer." Goldstein, he pointed out,
has no such advantages. Then again, Goldstein didn't start out
trying to attract big-named clients.
One day this winter, I showed up at Goldstein's home in the A.U.
Park neighborhood of Washington to discuss the anatomy of the cold
call, the black art to which he owes his professional reputation.
Goldstein has a wiry frame and tiny hands, even for a man of his
small stature. His eyelids are heavy, and his hair is
close-cropped. He was wearing a pair of ratty jeans, an ash-colored
crew shirt, and dark socks. On his face was what looked like a
couple days' stubble.
To get to the offices of Goldstein & Howe, we had to walk up two
flights of stairs. Over the years, the firm has upgraded from
Goldstein's laundry room, to a spare bedroom, to an entire third
floor, which Goldstein had added on. Still, the firm has only a
single large space--maybe 40 feet by 25--which alternately serves
as its lobby, its conference room, Goldstein's office, and the
office of three colleagues. Goldstein makes his cold calls from a
workstation in the room's southeast corner, a war-room in miniature
with two oversized, flat- screen monitors and a desk strewn with
The way Goldstein's cold calls work will be familiar to anyone who
has ever tried to sell something by phone. Goldstein calls up a
lawyer, says he thinks their case might be Supreme Court material,
and then commences making small talk and, eventually, his pitch.
The process involves the stick-to-it-iveness of a used-car salesman
and frequent rejection. But it also succeeds at a surprising rate.
The reason is that Goldstein was among the first to identify a
vast, unexploited market. What's been happening for decades, he
says, is that sophisticated clients like wealthy corporations have
been filing lots of cert petitions--the documents in which a lawyer
lobbies the Supreme Court to take a case. But people without money
and knowledge of how the Supreme Court operates almost never file
cert petitions, even when the Court is certain to take their cases.
These are the clients Goldstein pursues. "What I can do is fix some
of the--to misuse an economics term--diseconomies in the system,"
he told me while fidgeting with a black paper clamp.
As the competition for these cases has intensified, Goldstein has
tweaked his model slightly. These days, he not only helps clients
appeal to the Supreme Court; he also preserves their lower-court
victories by blocking their opponents' appeals. Early last year,
for example, Goldstein contacted a small- town Georgia lawyer named
Wilbur T. Gamble. One night in 2001, Gamble's client, Scott
Randolph, got into an argument with his estranged wife at their
home. She called the police, and the cops asked if they could
search the premises. Randolph refused; his wife consented. She led
the patrolmen to a stash of cocaine, prompting Randolph's arrest
and eventual conviction. He appealed his conviction to the Georgia
Supreme Court and won.
Goldstein knew the state would appeal to the Supreme Court. He
wanted to block the appeal and asked to take the case. Gamble
expressed interest but never followed up. Over the years, however,
Goldstein has kept after enough people to make his own luck. A few
months after soliciting Gamble, Goldstein got a call from Randolph
himself. As expected, the Court had accepted the case, and Randolph
had decided he needed a Supreme Court specialist. He handed the
reins over to Goldstein, who was confident he could convince the
justices that the lower court had it right. "To go the other way,"
he explained, "to say that, even if you object, you can't keep the
police out of your house-- it goes too far."
Not ten minutes after my first-ever phone conversation with
Goldstein, he e- mailed me a Word document he had compiled titled
"Prominent Members of the S. Ct. Bar and Their Backgrounds." The
one-page file lists 14 of his most distinguished colleagues and
their credentials--law school, Supreme Court clerkship, solicitor
general's office experience. Without exception, they made
Goldstein's resume look puny. Goldstein obviously knew this. The
point of familiarizing me with the uppermost tier of Supreme Court
advocates was to demonstrate how unlikely it was for a guy like him
to be in it.
Goldstein enjoys success most when the odds are against him. And the
way he made it to the Supreme Court was by lengthening them
dramatically. There was a time in his life, after all, when
Goldstein had the makings of a traditional advocate. The son of a
lawyer, he grew up in Florida and South Carolina and was a
fanatical debater in high school. But this passion very nearly
derailed his academic career. When he got to the University of
North Carolina, he devoted so much energy to debating that he may
well have flunked out had he not hit it off with Amy Howe, a
student who lived in his freshman dorm (and later his wife and law
partner). To get by, he enrolled in Howe's courses and then borrowed
her notes around exam time.
Thanks partly to the mediocre grades this tack produced and partly
to a screwup in mailing out his lsat scores, Goldstein managed to
complete his senior year without gaining acceptance to a single law
school. Goldstein had wanted to be a lawyer for as long has he
could remember, and now he was desperate. Eventually, he turned to
his stepmother's distant cousin, who was an adjunct lecturer at
American University in Washington. That person went to the law
school's director of admissions and pleaded on Goldstein's behalf.
"He said, `This is my favorite cousin, Tommy, and I think he'd be a
really good law student,'" Goldstein recalled. "And they admitted
me to the evening program."
Goldstein spent two summers during law school interning for NPR
legal affairs correspondent Nina Totenberg, who eventually helped
him land a clerkship with a federal circuit judge. After the
clerkship, Goldstein accepted a job at the Washington office of a
Cleveland-based firm called Jones Day. Like a handful of its rivals
in the '90s, Jones Day had started asking young associates to
occasionally troll for so-called circuit splits--that is, cases
where one lower appeals court (or "circuit") had ruled one way on an
issue and another had ruled another way, making them ripe for
appeal to the Supreme Court. The hope in putting lawyers on this
project was to identify and then solicit Supreme Court cases. The
only problem was motivation: Young associates at large law firms
have a million tasks on their plates, not least the drudgery of
logging thousands of billable hours. Even if they successfully
identified a case, it would likely be a top partner who got the
glory of arguing it. Not surprisingly, over the previous several
years, the firm had little success attracting Supreme Court cases.
The long odds appealed to Goldstein, however. "He really enjoyed
doing it in a way that most of us didn't," recalled David Sanford,
a colleague of Goldstein's at the firm. "Some people like to play
basketball, some go to movies. Tommy likes to do circuit splits."
Goldstein began tweaking the firm's search algorithm. Before long,
he saw a way to make the game more interesting: He took it upon
himself to land the cases--which is to say, to start cold- calling.
In a matter of months, he had collected four Supreme Court cases,
and, as he honed in on the fifth, Goldstein decided to have a
conversation with his superiors. "I said, if this case does get
granted ... I'd really like to [argue it]. And they said no, which
was undeniably the correct decision. Their point was that I had no
experience at all."
Up until this time, Goldstein had figured he'd make his mark in
ordinary trial work, not appellate work. When he considered the
people who normally argued before the Supreme Court, he didn't see
anyone who looked like him. But now he realized that pedigree
didn't much matter. If anything, the effect of his middling
credentials was to make the game more interesting. "It was a
complete demystification," he said. "It became apparent to me that
it's hard-- you have to work hard at it. But there's nothing at all
magical about this."
As a kind of consolation prize, the partners at Jones Day agreed to
put him on track to argue a Supreme Court case eventually--by first
having him argue a number of appellate cases, then working his way
up to the big show. It was a reasonable offer, but absurd in its
own way. Goldstein reckoned that, had he accepted, it could have
been more than a decade before he finally argued before the Court.
Goldstein's response was to raise the stakes again. He quit Jones
Day in 1997 without so much as a single job interview in hand. It
took him a few weeks to line up an offer at another firm--"long
enough to make my wife nervous," he said. But then, thanks to a
lawyer-friend's recommendation, the just-launched firm of famed
litigator David Boies called asking if he'd be interested in
joining its Washington office. Boies, who attended the obscure
University of Redlands before graduating magna cum laude from Yale
Law School, is not one to obsess over credentials. "Where you went
to law school, how well you did in law school, are important
criteria," he recently told me. "Much more important is the
intelligence, ability to focus, the passion."
In his second year at the firm, Goldstein landed two cases that the
Court subsequently accepted. One involved the Los Angeles Police
Department and concerned a First Amendment question. When the
police make an arrest, they release the information to crime
reporters working on the story. But the law allowed the police to
deny the information to lawyers trying to sign up the detainees as
clients. At heart, the case was about whether lawyers like Tommy
Goldstein should be able to cold-call prospective clients. Goldstein
decided to cold-call the lapd and see if he could help freeze these
Eventually, he got a hold of Byron Boeckman, the attorney handling
the case, and said he would be willing to file the cert petition
for free if the city would let him argue it. Boeckman, who is now
retired, recently told me that Goldstein called at just the right
moment. "We were very, very busy at the time. It was a major
case.... There were a lot of issues we weren't very expert in... .
And so I was thrilled." Was he worried that Goldstein sounded a
little green? "You know, I did think about it. He sounded awfully
young for his experience level." But Boeckman felt much more
comfortable after doing a little due diligence. "I researched the
firm.... I knew the firm had an impeccable reputation. And they're
not going to let his work go unsupervised."
Not long after, Goldstein left Boies & Schiller to launch his own
practice. Supervision was a thing of the past.
Two years ago, as the Court was handing down a number of decisions,
Goldstein parked himself in a lounge near the main chamber and began
typing furiously into his BlackBerry. No bona fide democratizer can
take himself seriously without a blog, and so, naturally, Goldstein
has one. Scotusblog, whose content he and his employees produce, is
one of his most successful innovations. The blog has become a hub
for Court-related discourse and is widely read by other lawyers,
law professors, journalists, and even, one suspects, the justices
themselves. Goldstein's goal on this day was to relate the
decisions to his readers in real time.
This wasn't the kind of behavior the Court normally tolerates, alas.
"The marshal of the Court called me and said, you know, `Were you
blogging from the courtroom?'" Goldstein recalled. "I said, `No no
no no. I was in the lawyer's lounge.' She said, `OK, you're not
going to be able to do that any more.'" Goldstein laughed. "I said,
`OK, fine, sorry. I didn't mean to make anybody mad. ' I think that
everyone else on the bar, their natural reaction is, `Don't do
something that would be unusual or rock the boat,'" he said. "And
that sort of screen hasn't existed for me."
Part of the discomfort Goldstein arouses among those in the Court's
orbit stems from the conservative, establishmentarian instincts one
finds in people who've succeeded along a well-worn path. And there
is no one more establishmentarian within the Court than Roberts.
Though the justices are notoriously aggressive questioners, he
seemed to pack an extra bit of pique during Georgia v. Randolph
this fall. Roberts had proposed a hypothetical to test Goldstein's
logic: If the police showed up at a ten-bedroom apartment and all
but one of the roommates agreed to let them in, would the police be
turned away? Goldstein responded by reversing the question: What if
nine people objected and only one agreed? "What I'm saying," he
concluded, "just to return to the basics, is ..." At which point
Roberts testily cut him off: "What--well, what is your answer to
This is not to suggest that Goldstein is ever out of his depth
before the justices. To the contrary, as Goldstein has become more
prominent and the cases he handles have grown meatier, he has
matured into a formidable courtroom presence. "I have never
regretted referring anyone to Tom," said Harvard constitutional
scholar Laurence Tribe, who sent business Goldstein's way early in
his practice and maintains a relationship with him to this day.
(Goldstein was even a top lieutenant to Tribe and David Boies
during Bush v. Gore in 2000. ) "He has handled everything with real
grace as well as talent."
And, though there's no doubt that justices like Roberts can make
Goldstein play by their rules during arguments, there is little
they can do to stop the more meaningful changes Goldstein has
imposed. Compare the Court's docket during, say, the mid-'90s with
the docket of the last three or four terms-- after Goldstein hit
his stride. What you find is an important difference in the kinds
of cases that have been appearing before the Court: There are
significantly more cases involving private citizens with limited
means, small businesses, and cash-strapped institutions like the
city of Los Angeles.
These, of course, are classic Goldstein clients. But, these days,
he's not the only lawyer snatching up their cases. A generation of
imitators has followed suit. More and more firms are adopting
Goldstein's methods to lure even lower-paying clients. Large firms
like the Chicago-based Mayer, Brown have even fixed their internal
incentive problems. They now let younger lawyers both pursue and
argue Supreme Court cases. The hope is that the exercise will build
the firm's reputation and eventually help it attract high-paying
Goldstein has even inspired a growing mob of solo operators. One of
these, a Los Angeles-based attorney named Jean-Claude Andre,
recently told me that he first learned about Goldstein from a 1998
Washington Post article on the eve of Goldstein's first argument.
Andre was in law school at the time, but, as soon as he was
eligible to be admitted to the Supreme Court bar, he called
Goldstein and asked for advice. "He was extremely gracious,"
recalls Andre. "He had no incentive to help me, because, to some
extent, I would be a competitor. But we talk every couple of
months." Andre has already had two cert petitions granted and likes
his chances on a third. He personally knows two other lawyers who
have followed a similar model.
The result of all this has been to clog up the Supreme Court's
80-case docket with numerous cases the justices and clerks are less
than excited about but that they are more or less obligated to hear
because they so obviously fit the Court's own criteria. The groans
that result aren't entirely undeserved. The cases Goldstein and his
ilk bring generally don't involve vexing constitutional questions.
On the other hand, there are only so many world- historical
questions the Supreme Court is going to resolve in a given term.
(Though Goldstein is now such a prominent figure that he handles
those, too.) The majority of cases have always revolved around
issues of narrower scope. The big difference between the cases the
Goldsteins of the world now bring and many of the cases they have
displaced is that the latter involved wealthier clients with more
refined lawyers. There is a word to describe one's preference for
these cases, but it is not a legal term. It is a cultural one:
Over the last few years, large law firms have periodically
approached Goldstein, offering, in effect, to purchase his
practice. He has always turned them down for fear of ceding too
much control. But, earlier this month, he finally signed on with
the global firm Akin Gump, which appeared to offer him the best of
all worlds. Goldstein will basically set up a practice within a
practice--like Goldstein & Howe, but with many more resources and a
Goldstein doesn't officially start at Akin until May, but he is
gradually easing himself into the firm's lifeblood. Last week, he
attended a firm recruiting event in Cambridge, Massachusetts, at an
upscale Harvard Square eatery called Harvest. Before flying to
Boston, he had stopped by the Court in hopes that the Georgia v.
Randolph decision might finally come down. The Court had already
decided every other case argued around the same time, and Goldstein
interpreted the delay as bad news. He figured it meant Justice David
Souter-- who is notorious for taking his time--was writing the
opinion, and he assumed, based on the questioning during the
argument, that Souter had been unimpressed. "It's really bad for
us," he bleated, as close to brooding as I'd ever seen him, which
was still not very close. But there was still no decision, and he
left for Cambridge without resolution.
Goldstein has been in Cambridge frequently in recent years. In 2003,
he was landing more pro bono Supreme Court cases than his small
shop could handle, and he thought he might like to involve law
students in preparing them. Many law schools run these sorts of
clinics, but none had ever focused on Supreme Court work because no
one believed you could attract enough of it to keep the students
busy. Goldstein had the cases; he just needed students. He shared
the idea with a law professor friend at Stanford, which agreed to
fund the project. After the Court granted the first few cert
petitions the Stanford clinic filed in 2004, the program won
national attention. Soon, Harvard's dean, Elena Kagan, expressed
interest, and, by 2005, Harvard had its own version.
That relationship, one suspects, is part of the reason Akin asked
Goldstein to make the trip to Cambridge. It was the first time
Goldstein had met many of his future colleagues, and most seemed
excited to have him at the firm. But there was still some of the
inevitable rear-end sniffing that accompanies introductions among
highly accomplished people. At one point, Goldstein chatted with
two New York-based Akin lawyers, and the conversation turned to his
"So you went to Stanford?" asked one.
"Wow. I'm having trouble hearing here. I only hear every other
Though some fellow lawyers may be a little standoffish, the students
Goldstein mentors are almost uniformly admiring. This affection has,
in turn, helped him recruit some of the top legal talent in the
country. And, of course, over the long term, Goldstein's work with
the clinics ensures that the people who inherit the uppermost
stratum of the U.S. legal system will be sympathetic to his unique
brand of entrepreneurship.
I got to observe this dynamic firsthand earlier that afternoon
during a poker game with Goldstein's former students. It was around
1:30 p.m. when we showed up at the Harvard Law Review, perhaps the
second-most hallowed institution in the legal world. As we walked
into the "articles room," Goldstein began unpacking the
$100 in quarters he'd schlepped all the way from Washington in a
black, goldstein & howe courier bag. We all gathered around a small
conference table and bought in for $10. Goldstein was a natural in
the role of beloved mentor, particularly when it came to questions
about poker odds. He is quick with the big bet and just as quick to
deduce other people's cards. Deep into one hand, he correctly
guessed I was sitting on an ace and a ten.
After about an hour and a half, classes and work had thinned the
game to five players. It was around this time that the door
rattled, and a few unfamiliar voices entered the room. My back was
to the door, but I noticed Goldstein and another student shift in
their seats. I had the sinking feeling we'd been busted. Goldstein
had his sleeves rolled up, his tie loosened, and was sporting a
yelloworange foxwoods casino baseball cap, which he wore backward.
The sun had been shining through the room's only window all
afternoon, and I suddenly became aware of our body odor.
Behind me was a tallish young man wearing a red pullover and a
backpack, followed by a middle-aged couple, who appeared to be his
parents. "Is this a class?" one of them asked, noting the cards and
the quarters piled up in front of us. More awkwardness. Then
suddenly Goldstein smiled. He recognized the student, who
introduced his parents. "Tom Goldstein of Goldstein & Howe?" the
father exclaimed. Goldstein flashed an embarrassed smile, and the
father began gushing.
"You must have heard the one about how your firm got its name?"
"Someone said, `Is that Tom Goldstein?' And the other one said, `And
"No, I hadn't heard that one yet. That's great."
At 10:09 the next morning, I received an e-mail from a lawyer friend
who follows the Court. "Big, big win for Goldstein on Randolph," he
wrote. It turned out Souter wasn't so irreconcilable after all. The
key swing vote had been Justice Stephen Breyer, which Roberts
alluded to in his dissent. I e- mailed Goldstein to congratulate
him. His response came a minute later, and he didn't seem
surprised. "Thanks a ton," he wrote. "Very exciting."