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The late Chief Justice William Rehnquist was a stickler about his title at the start of his tenure, often upbraiding advocates who made the mistake of addressing him only as “Justice Rehnquist.” Current Chief Justice John Roberts Jr. seems far less concerned about that formality. But on Wednesday, with a nod to Rehnquist, his predecessor and mentor, Roberts corrected a lawyer who made the same mistake – about Rehnquist. It came during arguments in Henderson v. U.S., a dispute over interpretation of the federal rule governing when a “plain error” in a criminal trial can be appealed in spite of the fact that the lawyer did not object to the error at trial. The defendant’s lawyer, Patricia Gilley of Shreveport, La., was discussing a 1997 precedent written, she said, by “Justice Rehnquist.” With a smile, Roberts interrupted Gilley to say, “He was chief justice, by the way.” She apologized and Roberts said, almost sheepishly, “It matters to one of us.” Amid rising laughter from spectators, Justice Antonin Scalia, the court’s senior associate justice, consoled Gilley by saying, “That’s okay.” Moments later, Gilley made the same error, and Roberts gave her a pained look but let it pass. Soon, she was referring to Rehnquist as chief justice, and the argument proceeded. It was not the only rookie error Gilley made during the argument. She struggled to keep up with the justices’ intense questioning. The court seemed fully engaged in the case, discussing both the theory behind the plain error rule and the practical pros and cons of the opposing positions in the case. At one point Justice Anthony Kennedy tried to steer the discussion away from what he described as “the metaphysics of the plain error rule,” but he was only partly successful. As Gilley faltered, the justices picked up the slack and debated enthusiastically among themselves, almost as if they were at their private conference discussing how to decide the case. Even when the more nimble government lawyer, Jeffrey Wall, rose to argue for the solicitor general’s office, the justices largely used him as a foil for their discussion among themselves. It was a rare glimpse into the justices’ deliberative process. When the justices first started considering the case last spring, they might have thought someone else more experienced than Gilley would argue on behalf of defendant Amarcion Henderson. Veteran high court advocate David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel was on Henderson’s certiorari petition when it was filed in March. But sometime after that and before the brief on the merits was filed in August, Frederick was dropped from the team. Frederick watched the argument from the lawyers’ section Wednesday, not at Henderson’s counsel table. Afterward, he declined to comment. Gilley could not be reached for comment. Tony Mauro can be contacted at tmauro@alm.com.

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