Reliving Past Lives

One of the great things that I got to do before I was a "recovering lawyer" was argue a case in the United States Supreme Court. It was just over 15 years ago, and, frankly, it had receded to a warm but distinctly hazy memory.

And, then today I discover that my argument is now available in a Podcast for all to download.

Of course, the reality is that few of those who download the Podcast are likely to hear me while they're fast forwarding to get to the argument by the lawyer everyone wants to know more about today, John Roberts.

Roberts and I happened to be arguing the same side of a case dealing with a very interesting (to lawyers) and intellectually challenging, albeit arcane, question of statutory interpretation back then. The outcome we wanted was for the Supremes to agree that Virginia hospitals could not sue the state in federal court demanding higher Medicaid reimbursement rates. We lost 5-4.

Here's what one commentator says in an analysis of "Roberts problematic record on disability rights" about the ominous implications of Roberts' brief and argument that day:

"In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Roberts filed a brief in the Supreme Court on behalf of the United States, as deputy Solicitor General, arguing that Medicaid rights were not privately enforceable. Fortunately, the Supreme Court rejected this argument, and the Wilder decision has been the basis for most cases in which courts have permitted Medicaid recipients to enforce their rights. This victory has been severely eroded by the Supreme Court’s subsequent ruling in Gonzaga, in which Roberts argued to limit private enforcement of statutes."

Since I was lead counsel and he was just counsel for a friend of the court, I guess that must mean I have a "problematic record on disability rights," too, even though the case had nothing to do directly with the rights of the disabled.

This seems a bit at odds with my self-perception, however. I have a brother who is an autistic savant, and I've been advocating for disability rights since I was a teenager. My mother was a leader in Virginia's right to education movement back in the late 60's and early 70's. I know that she'd be surprised to learn that I have a "problematic record on disability rights."

But, I guess you have to accept that, as a lawyer, the briefs you write and the cases you argue on behalf of clients should be read by the public to define who you are and what you believe. Even where the implications of those cases beyond their specific facts are ill-defined at the time or completely unpredictable.

After all, you could always have chosen different clients or a different career path as a public servant or simply refused to argue the case assigned.

Couldn't you?