Roberts’ New Counselor to Arrive Amid Rocky Times at High Court

Robert Dow stood out even within Big Law as a clutch attorney with an extraordinary work ethic when he left Mayer Brown to become a federal judge.

“He was definitely one of the go-to appellate lawyers if you had a really thorny issue that you needed advice on or someone to write a brief in a federal court of appeal or the Supreme Court,” said Michael Frisch, a partner at Croke Fairchild Duarte & Beres in Chicago who previously worked at Mayer Brown and clerked for Dow.

Now the 57-year-old jurist is leaving the bench, at least temporarily, to help with sensitive issues as Chief Justice John Roberts’ chief of staff at a rocky time for the Supreme Court.

Dow’s formal title will be counselor to the chief justice, a 50-year-old non-judicial job that’s varied over time and preferences of individual chiefs.

The Oct. 3 press release announcing Dow’s appointment said his responsibilities will include working on “Court-wide policies and initiatives” and supporting the chief justice as head of the federal judiciary, including “on matters of judicial administration.”

In addition to his court-administration role, Roberts’ previous chief of staff, Jeff Minear, served as a source of good guidance, said Jeremy Fogel, a former federal judge in California who served as director of the Federal Judicial Center.

“It is somebody that the chief can go to with sensitive matters,” said Fogel, who is now executive director of the Berkeley Judicial Institute. “How much of a role that person plays and how much influence they have is really going to depend on what the chemistry is between the chief justice and counselor.”

Dow, a Rhodes Scholar and Harvard Law School graduate, takes the role as the Roberts Court faces lower public approval ratings and questions about legitimacy. Still hanging over Roberts from a tumultuous 2021 term is an internal investigation into the leaked draft of the ruling overturning abortion rights and calls for a code of conduct similar to what the rest of the judiciary must follow.

Different Experiences

Dow brings a different set of experiences as the first federal judge to hold the job and long tenure on judicial committees that help craft federal rules of procedure, an area that Roberts oversees as head of the federal judiciary.

“Being counselor to the chief justice is in some ways the next logical step in his service to the judiciary,” said Judge Gary Feinerman, who serves with Dow on the Northern District of Illinois and has known him since their undergraduate days at Yale in the mid-1980s.

Dow received bipartisan support for his district-court appointment in 2007, nominated by George W. Bush and backed by Democrats including then-Sen. Barack Obama (D-Ill.). He was confirmed 86-0 to the seat that President Joe Biden can now fill, though Dow can later rejoin the bench without creating an additional vacancy.

Wisconsin-born Dow, who has lived with his family outside Chicago, has presided over significant matters like the Chicago Police Department consent decree and was set to handle the corruption trial of the city’s longest-serving alderman.

He also served as chair of the advisory committee on civil rules and as a member of the advisory committee on appellate rules, roles that raised his profile within the federal judiciary.

The fact that Dow was picked to chair the civil rules advisory committee “is a real indication that the chief justice has a lot of confidence in him,” said Fogel, who interacted with Dow while Fogel was at the judicial center and Dow was “very involved in committee work.”

Fogel said the civil rules committee is one of the Judicial Conference’s “busiest and most sensitive” panels. “The Federal Rules of Civil Procedure impact tens of thousands of cases involving virtually every aspect of society,” he added, noting that the process of amending rules requires careful judgment and the ability to consider many views.

Neither Dow nor the Supreme Court’s public information office would comment about his new role. He’ll start in December, the court said in its Oct. 3 release.

Chief Choice

The counselor position was created by statute in 1972, during Chief Justice Warren Burger’s tenure. Initially called “administrative assistant,” the title may have been chosen to not “make it seem too grand,” said Arthur Hellman, emeritus professor at University of Pittsburgh School of Law who has long studied the federal courts.

Mark Cannon, who Hellman described as a “very shrewd guy, very good with people,” held the position from its inception until the mid-1980s. William Rehnquist preferred shorter tenures for his counselors. Minear, by contrast, who worked with Roberts in the solicitor general’s office, was counselor to Roberts since 2006 before announcing his retirement this summer.

“It’s a very personal selection,” said Hellman. “A lot of these tasks involve some delicacy.”

Minear, for example, assisted Roberts during the 2020 Senate impeachment trial of then-President Donald Trump and attended a May meeting about judicial security convened by Attorney General Merrick Garland following the arrest of an armed man near the home of Justice Brett Kavanaugh.

He also served on a working group that Roberts created on sexual harassment in the judiciary following allegations that surfaced against Alex Kozinski, who retired from the US Court of Appeals for the Ninth Circuit in 2017.

Dow brings a reputation for non-partisanship at a time when the Supreme Court has been criticized by Biden as “more of an advocacy group these days” than “evenhanded.”

“I don’t know Judge Dow’s politics and I’ve never been able to pick them up from reading one of his opinions,” said Adam Hoeflich, a partner at Bartlit Beck who teaches at Northwestern Law where Dow has taught as well.

David Shapiro of the MacArthur Justice Center, who’s based in Chicago and also litigates Supreme Court cases, called Dow “a brilliant, fair-minded jurist who shows genuine dedication to the work and the law and real empathy for those appearing before him. He’ll be dearly missed in the Northern District when he transitions to his new role. Fortunately, our district’s loss will be the Chief Justice’s gain.”