Law Prof Takes Case to the Supreme Court

Yesterday, Chief Justice of the United States Supreme Court John G. Roberts ’76, a graduate of Harvard Law School, got to turn the tables on one of his former instructors.

In his first Supreme Court appearance since December 2004, Loeb University Professor Laurence H. Tribe ’62 argued that the property rights of Harvey F. Robbins, the Wyoming rancher he was representing, were violated when the U.S. Bureau of Land Management (BLM) took retaliatory action against him for failing to give the government access to a road.

“They ransacked his cabin, they got a neighbor to run a truck into him when he was on horseback, they fabricated felony charges against him,” Tribe said. “All because he wouldn’t bow to their demands.”

The Supreme Court has to determine if plaintiffs can sue government officials personally under federal racketeering laws; Robbins is trying to sue BLM employees.

In his argument, Tribe claimed that the Fifth Amendment protects citizens from facing retaliation from the government for excluding the government from private property.

“In my view, the Fifth Amendment protects you not only from having your property taken without just compensation, but it also protects you from being subject to government retaliation,” Tribe said in a phone interview from Washington after his appearance before the court. “That’s the case here.”

The argument marks Tribe’s first appearance before the Supreme Court since Roberts, his former student, was appointed by President George W. Bush to lead the court in 2005.

Tribe noted that his argument before Roberts yesterday was a far cry from the chief justice’s days in the classroom.

“It was considerably more challenging than when he was my student,” Tribe said. “It was an invigorating experience.”

Roberts questioned Tribe on whether there were other ways that Robbins could seek relief besides suing government officials personally.

Beneficial Professor of Law Charles Fried, a former U.S. solicitor general, said he could not recall a Harvard professor taking a case to the high court since Roberts and Justice Samuel A. Alito, Jr. joined the court in late 2005 and early 2006 respectively.

After Tribe agreed to take the case, he enlisted the help of several students and research assistants. Research Assistant Warren D. Postman said the students and assistants participated in making the first draft of Tribe’s oral arguments.

“I’m not sure how much of that language made it into the final draft,” Postman said.

While Tribe said he sensed the justices were sympathetic to his Fifth Amendment argument, they were wary of creating new ways to sue government employees.

“There is a considerable amount of hostility for the possibility of opening up the floodgates of litigation against government officials,” Tribe said.

—Staff writer Kevin Zhou can be reached at kzhou@fas.harvard.edu.