Roberts Gets It Right

Back when I was in law school, I took a class in Conflicts of Law.  Conflicts (as the cognoscenti call it) is the area of law involved in figuring out whose law and what law controls.

Say that Jim lives in Florida.  While he's on a business trip to Alaska he buys a car made in Nebraska and ships it home with intended stopovers in North Dakota and South Dakota and that the shipping company, which was approved for shipping cars by the manufacturer in Nebraska and the dealer in Alaska, loses the car somewhere between Alberta, Canada and Jim's home in Tampa.  Jim wants to sue somebody or, better still, everybody.  But where?  Canada? Alaska? Nebraska?  One of the Dakotas? Florida?  Maybe Alabama (it ends in an "a," too)  And all those places have their own laws and procedures.  Which ones apply?  (This is a law school question.  It's why you shouldn't go to law school if you don't have a desperate desire to be a lawyer.)

One of the cases we read in the class (and honest to god, I have no idea what case it was or what it was about except that it had, I presume, some relationship to the subject of the course) was from the US Supreme Court.  The's the one thing I remember about it.  The decision was 7-2 with a dissent either by Rehnquist joined by Marshall or by Marshall joined by Rehnquist.

It was an odd pairing.  One of those man-bites-dog sorts of things you remember precisely  because it was so unlikely.

But if you think about that sort of odd pairing, you realize that what I thought when I read the case (whatever it was about) was almost surely right:  The Marshall/Rehnquist (or Rehnquist/Marshall) dissent was clearly right and the majority opinion was wrong.  I mean, when you rope together that sort of oddball pairing, it's likely to be because they're onto

Which brings us to Robertson v. United States ex rel. Watson.  Robertson filed his petition for writ of certiorari asking the Court to hear the case in September 2008.    In December 2009, the Court granted his petition, limiting it to the following question.

Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.

The Court heard oral argument (transcript here) in March this year.   Monday, well over a year and a half after it was invited to step in, the Court issued its one sentence opinion.

The writ of certiorari is dismissed as improvidently granted.

I'm not being fair.  The way I've laid this out suggests that I'm interested in it as a case of justice delayed.  It's not.  It's actually a case of justice denied.

I'm not going to prattle on about the facts here or about the other issues in the case.  What I'm interested in is the dissent.  And the line-up of the dissent suggests, I hope, why I began with that tale about the Conflicts case.  Opinion by Chief Justice Roberts (when he gets it right, I give him the dignity of his full title used as an honorific, as I sometimes do [though using it in a scoffing, fashion] when he gets it egregiously wrong) joined by Justices Scalia, Kennedy, and Sotomayor.

It's not as odd a matching as Rehnquist and Marshall (Marshall and Rehnquist?), but it's enough to raise some eyebrows.  The Chief and Scalia, not so odd, but without either Alito or Thomas it's a peculiar pair.  Kennedy, who's prone to going his own peculiar way is still an odd fit since he rarely dissents at all.  And then there's Sotomayor, who's been more often on the side of the alleged liberals* - especially in criminal justice matters, than I'd expected, though the sample is still small.

More than the line-up, though, is what they had to say.  They'd have reversed.  Here's the opening paragraph (and the guts, really) of their opinion.

This is a complicated case, but it raises a straightforward and important threshold issue. When we granted certiorari, we rephrased the question presented to focus on that issue: “Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” 558 U. S ___ (2009). The answer to that question is no. The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government. The court below held otherwise, relying on a dissenting opinion in one of our cases, and on the litigating position of the United States, which the Solicitor General has properly abandoned in this Court. See Brief for United States as Amicus Curiae 12–13, n. 3. We should correct the lower court’s error and return the case to that court to resolve the remaining questions.

In case you missed it, here's the key sentence.

The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.

There are so many important things in that sentence I hardly know where to begin. So as Maria sang, I'll "begin at the very beginning."

The terrifying force of the criminal justice system.

Who knew that Roberts had any idea its force was "terrifying"?  We're talking about someone who has seemingly no concern with the horrors that system inflicts on people.  Certainly, he was comfortable joining Breyer's opinion saying that lifetime incarceration of a person who might someday commit a crime.  And he was happy to write the opinion shutting down habeas relief in Renico v. Lett, and to join in similar opinions foreclosing relief in, e.g., Smith v. Spisak and Bobby v. VanHook.  On the other hand, there was his concurring opinion in Graham v. Florida and some legitimately powerful language in US v. Stevens.  In any event, he's now on record (as are Scalia, Kennedy, and Sotomayor describing the criminal justice system as acting with "terrifying force."  Good.  Let's hold them to the consequences - that people deserve real protection against that force.

may only be brought to bear against an individual by society as a whole

It's part of the terrifying force.  But let's stop talking, shall we, about level playing fields and how we've gone over the top with the rights of criminal defendants. We're talking about this guy and arrayed against him is not just the police and the prosecutor and the court and the elected judges and the law.  There's also the newspaper and TV and radio and all those jurors who walk into the courtroom and look at the defendant and know (and are told) that the prosecutor represents the state or the government or the people or well, basically, them.  Which means that the poor defense lawyer just represents this piece of pond-scum shit they wouldn't let near their anything.

So don't go giving me asses and elbows when I need a continuance.  And let me have the damn expert or investigator.  And stop pretending that it's really OK for cops to lie and the prosecutor to cheat because they're law enforcement and god is on their side and besides they have to do something to make up for the overwhelming force of my client's legal rights and besides, he's probably guilty.

through a prosecution brought on behalf of the government.

Do I hear a death knell for victimology in our system?  Are Roberts and the other three ready officially to acknowledge that the aggrieved party in a criminal case is the government, not the pers  on (or family or friends of the person) individually wronged by the criminal act (if there was one)?  Can we agree that there can be no more "victim impact" testimony because the "victim" of crime is the social fabric/society itself, not the wronged individual whose remedy (inadequate though it be, though ultimately no more inadequate) is in tort rather than criminal law?

So here's a serious question.  Why were they only four?  And in dissent?  And where will we find Elena Kagan, who as Solicitor General (whether on her own or under orders) refused to support the broadest of the government's claims?

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*As I've said before, there are no actual liberals on the Court these days, unless Sotomayor should turn out to be one.