Photo: Hon. Robert M. Dow Jr., Collection of the Supreme Court of the United States

Feb. 26, 2025 – From practical advocacy to the majesty of courts and the rule of law, the Hon. Robert M. Dow, Jr. – federal judge and appointed Counselor to U.S. Supreme Court Chief Justice John G. Roberts – offered insights at the Feb. 18 Thomas E. Fairchild Lecture at the U.W. Law School, titled “Reflections of an Appellate Lawyer Turned Trial Judge.”

Dow, a Madison native, weaved his experience into the question-and-answer format moderated by U.W. Law School Professor Nina Varsava, whose research focuses on procedure, courts, and judicial administration.

Dow began his career with options of law or diplomacy. “I still think today that diplomacy is intrinsically more interesting than law,” said Dow, who interned at the U.S. Department of State in the late 1980s. “I thought diplomacy was an amazing way to do public service.”

Instead, Dow rose up to partner at Mayer Brown LLP in Chicago, working in the Appellate and Supreme Court and Telecommunications practice groups. In December 2007, Dow began service as a U.S. District Judge for the Northern District of Illinois. He also served by designation on the U.S. Courts of Appeals for the Sixth and Seventh circuits.

In a sense, he never left diplomacy. In his current role as appointed Counselor to U.S. Supreme Court Chief Justice Roberts, chief of staff and the Supreme Court’s chief operating officer, Dow’s job connects him with high courts and justices around the world.

A Judge’s Soft Power

At the European Court of Justice (ECJ) last September, Dow recalled “the power of diplomacy and the power of people being with other people to talk about common problems and common goals.”

All ECJ’s opinions are unanimous. Members of the court are “both judges and diplomats” building consensus between 27 countries. “I thought that was an amazing lesson.”

On that trip, Dow stayed with Tom Barrett, ambassador to Luxembourg, who was “advancing the rule of law with soft power, and soft power is so hard to come by.”

“Judges have soft power, too, and it’s an amazing thing that you learn with the job is how much soft power you have,” Dow said. “You get the soft power by treating every single person that comes in your courtroom with respect and dignity.”

It starts with making sure that lawyers and parties “feel heard and respected.” If they are, “they will work with you to try to get the right result in every case.”

With soft power, judges may encourage settlement conferences – parties resolve most cases before trial – and persuade people to improve conduct.

For example, Dow talked with a defendant and mother after sentencing. He explained that during the time of prison and supervised release, “‘we have resources,’” such as drug treatment and job training. “‘We can’t make your son do this. Maybe you can, but we can’t.’ … That’s the soft power of the district judge.”

Brevity

Dow loved the “endless variety” of serving as a district court judge, and the connection with others. “It’s so nice to deal with regular people all the time,” he said.

When Dow began as a district judge, he had to overcome his past life as an advocate. “When you’re a trial judge, and you’ve got 300 civil cases in your docket, 50 criminal cases, you cannot write the 40-page opinions.” In contrast, “[w]hen you’re at Mayer Brown, you can write the 40-page brief on anything, and your clients will pay for it.”

Judge Dow began to write shorter. Although his law clerks may prepare first drafts of longer opinions, Dow writes some five-page opinions. “I got really good at writing short opinions.”

He encourages advocates to do the same. “Get to the point, particularly in district court. The Court of Appeals, they give you more time. The Supreme Court, they even give you more time.”

Limit the number of issues, Dow advised. “If you have more than three arguments on appeal, you’re telling the judge I’m throwing everything at the wall … because there can’t be that many reversible errors unless you’ve had the worst trial of all time.”

“Don’t bury the lede,” Dow said. “If you have a Seventh Circuit case on a precedent, and you’re in [the U.S. District Court for the Western District of Wisconsin], that’s a winner. That’s a winner every day, and you don’t need 10 pages to tell them that.”

Rules Committees

Judge Dow participated in revising federal rules of civil procedure and appellate procedure. From 2013 to 2022, he served on the Judicial Conference’s Advisory Committee on Civil Rules, chairing it in his last few years, among other committees and subcommittees.

“Anybody can propose an amendment to the rules,” whether civil, criminal, evidence, bankruptcy or appellate. “And most of our proposed amendments come from lawyers, … many that come from judges, many that come from the academy, and some of them come from pro se litigants. Some of them come from people who are just observers of the law.”

Dow summarized the way committees work with two words, “transparency and consensus.” The meetings have minutes recorded in agenda books published twice a year. “You can go through and look at the entire history of how those rules came about.”

“The original suggestions, most of which hit the cutting room floor, and the rules that will be promulgated are very different,” Dow said, “and that’s because the process is really good.”

The rule suggestion needs approval by the subcommittee, the full committee, and the standing committee before it’s sent out for public comment, Dow said. “Everybody on the planet has a chance to take a shot at that rule.”

After the comment period ends, the subcommittee and committees re-review the rule based on the comments. Only then are the rules approved for adoption.

They go to the Judicial Conference of the United States, the Supreme Court, and Congress. It can take five to eight years to see an approved rule change, Dow said.

Supreme Court and the Rule of Law

As counselor to Chief Justice Roberts, Dow has a unique view at the Supreme Court. Few people may know about the job. Dow didn’t, either. “I didn’t know this job existed until I had a call asking me if I was interested in it, and I said, ‘What does that person do?’”

“It turns out it is a real interesting job, but there’s no typical day. So, from September until the end of June, every day is crazy because the court’s in session,” Dow said. “And maybe it’s just the environment we are in now, but it seems like everything is coming to the court.”

Dow reviews what comes to the chief justice. “If it’s going to hit on the chief’s desk, it has to go through me, and I think that’s helpful for him to have a judge. I was the first judge who has had this job.” But Dow doesn’t “talk about the merits of the case” with the chief justice.

The chief justice heads the federal judiciary, chairing the Judicial Conference of the United States, which has 25 conference committees, and the board of the Federal Judicial Center, and Dow assists the chief justice with those duties.

More surprisingly, the chief justice serves as chancellor of the Smithsonian Institution, presiding over its Board of Regents. “They don’t ask me to run museums,” Dow said, but when the board has a legal question, they ask the lawyers in the room – the chief justice and Dow.

When Dow began, “I asked my predecessor what’s the hardest part of the job, and he said, ‘It’s when the chief tells me to tell his colleagues to do things they don’t want to do,’ and that is true, but they don’t have to listen to me, either.”

“People think the chief justice has a lot more power than he actually has. [Chief Justice Roberts] always says that Chief Justice [William] Rehnquist told him that the job comes with reins. Just don’t pull them too hard because they’re not attached to anything.”

Each justice on the Supreme Court has a powerful commission, Dow explained. “A president nominated you. The Senate confirmed you, and you have on your wall a commission. The commission says you are authorized to exercise the judicial power of the United States. That’s a pretty amazing thing.” And they “exercise their own independent judgment.”

A recent Marquette Law School Poll encouraged Dow because the poll showed that 51% of respondents had a favorable view of the Supreme Court. That’s reassuring because the work of the courts transcends the two- or four-year political cycle.

“What we’re supposed to do is helpful to the Constitution, and that’s got to be a timeless exercise,” Dow said. “We can’t … stick our finger to the wind.” What’s important “is that the decisions of the court are respected.”

The same Marquette poll said 83% of respondents believed it was “wrong for a president to defy a Supreme Court order,” Dow noted. “That’s really important.”