POLITICS 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 stepson claims.
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 "Access Hollywood."
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 finance case.
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 prot?g? 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 happening.
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 electronic gadgets.
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 lawyers out.
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 [my] case?"
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 clients.
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: snobbery.
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 larger staff.
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 clinics.
"So you went to Stanford?" asked one.
"Wow. I'm having trouble hearing here. I only hear every other word."
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 yellow-orange 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 how!'"
"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."
Noam Scheiber is a senior editor at The New Republic.