The ornate courtroom was relatively empty as the Supreme Court justices somberly emerged from behind long crimson drapes to hear arguments on October 31, 1978. Not surprising, I thought, as I took a seat in the small area of the courtroom reserved for the Court’s law clerks: It was hard even for us to get excited about whether an Omaha bank could charge 18 percent interest to its Minnesota credit-card customers despite Minnesota’s law limiting interest on credit cards to 12 percent. Yet most of the 33 law clerks were in the courtroom that morning. Robert Bork was arguing.
Bork was the premier appellate advocate of his time. He had been hired by the Omaha bank after the briefs had been filed, solely to present oral argument. It was a wise decision. The case seemed like a hard one, until Bork put the issue in starkly simple terms. “What we’re being told today is that [charging 18 percent] would be all right if a Minnesota resident drove to Omaha and got his credit card, but not if he sent a letter or an application asking for his credit card.” Hmm. Why hadn’t I, or anyone else, thought of that? Bork was right, and his argument that day turned a close, and possibly losing, case into a unanimous win.