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.

Goin' for a ride in the car, car

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And every spring the Easter Bunny comes and leaves colored eggs and baskets of candy for children small and large. Of course, the Easter Bunny is real and the Fourth Amendment is . . . . Oh, wait, you say it's the Fourth Amendment that's real. Perhaps you need to speak with the Chief Justice of United States.

Here's the basic Fourth Amendment rule, pared down to simple English and elaborated generically:

Government agents can't search you or your stuff or seize you unless they get a warrant specifically authorizing the intrusion. The warrant has to be justified by probable cause. There are certain exceptions that the courts have made up over the years, but they are few, specific, and must be understood narrowly. If government agents violate this rule, their actions are unconstitutional, and any evidence they turn up against you will be suppressed.

We now take a break for the return engagement (two appearances so far in this post, and I'm just getting rolling) of our friend the Easter Bunny.

It's no secret to anyone who plays in the sandbox of criminal law (police, prosecutors, defense counsel, judges and justices) that the reach of the Fourth Amendment has been scaled back over the years. Nor is it a secret that "persons, papers, and effects" have less protection when they're in a motor vehicle than when in a building. It's that combination which gave us what's known as the "automobile exception."

To explain the automobile exception, I need to back up to that generic statement. Among the exceptions to the warrant requirement is a situation where police have probable cause to believe that a search will turn up evidence of crime and there are exigent circumstances which make it impossible to get a warrant without risk of losing the evidence. Back in 1925, in Carroll v. United States, the Supreme Court said, in effect, that automobiles are, themselves, exigencies. If there's probable cause to search a car, the cops don't need to bother with a warrant. In 1979, in Delaware v. Prouse, the Court made clear that police can stop a car without probable cause (not a search, a stop). Reasonable suspicion, a lesser standard, is enough.

Now, what generates reasonable suspicion? Police see something that indicates a problem? Reliable citizen calls in, identifies herself, provides specific information that police corroborate that indicates a problem? Sure, both of those things.

But what about some anonymous person says, "I just saw a Caddy with a drunk driver?"

That's what happened in Virginia. Police in Richmond received an anonymous tip that Joseph Harris was driving drunk. They found him and followed him but he didn't do anything wrong. They pulled him over anyway. Turns out he was drunk. He appealed, the Virginia Supreme Court said that an anonymous tip absent some confirming evidence, isn't even reasonable suspicion of a DUI. Well, duh. If that's enough, anyone can get anybody stopped anytime. Just call the cops and tell them that, say, Paris Hilton is driving drunk. (OK, maybe that's a bad example, since she so often is.)

Yesterday, the Supreme Court refused to hear Virginia's appeal. Typically, that's not news. The Court refused to hear bunches of cases yesterday. But Virginia v. Harris was unusual. Chief Justice Roberts decided to explain why he thought the Court should have heard the case. Here, in paraphrase, is what he said.

Drunk drivers are really dangerous. So they probably shouldn't get any protection from the Fourth Amendment.

See, if you believe the Constitution's protections only apply to innocent people who are never accused of wrongdoing, then you probably think Roberts got it right. But if you believe that, then you believe nothing. The Constitution, for you, applies only when it's irrelevant. In fact, we protect the bad guys as a means of protecting the good guys. Until it's all worked out, after all, we don't know which is which.

When Gideon wrote about this yesterday, I thought of how much fun we could have had if Roberts carried the day. Imagine calling the cops every day to say that the Chief Justice of the United States was driving drunk. They could pull him over on a daily basis. Perhaps, in time, he'd get the idea.

It would almost have been worth it. Almost.

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By the way, Scalia joined in Roberts' comments. Nobody else did.

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Other relevant blawgs on this:
Preaching to the Choir, The Defense Rests, The Volokh Conspiracy.

SO HOW DO YOU INTERPRET THE CONSTITUTION, ANYWAY? Part I

Jeffrey Toobin has a long profile of Chief Justice John Roberts in the New Yorker which you can read here. And when (if) you do, and if you can get past the just being happy with or pissed off at Roberts, you might find yourself actually thinking about what he does and how and why and, ultimately, whether it makes some sense. As I asked, "How do you interpret a constitution?"

Here, you may recall, is what Judge John Roberts, then-supplicant for the job of Chief Justice, told the Senate Judiciary Committee:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

And here's how Toobin describes that humility in practice:

The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

I'm not particularly interested here in whether Roberts got it right in those cases. (Mostly, but not always, I think he didn't.) Rather, I'm interested in how he got there, and whether his description of the job of Justice (which is, frankly, different than the job of judge) is accurate.

So let's start with the analogy itself. First of all umpires are not just judges. They're also police and juries. They do decide when the law applies and what it means, which is what judges do. But they also enforce the rules, which is what the police do. And they decide the facts, which is what juries do.

Supplicant Roberts, was really talking about umpires as jurors, not as judges. Balls and strikes are what they are. The runner is safe or out. Either the ball was caught or it was trapped. The ball was or wasn't fair. The ump may call 'em as he sees 'em, but he either sees 'em right or he doesn't. And that's what juries do. They decide who's telling the truth, whose memory is reliable, which expert is more credible, and ultimately, whether whatever the question is has been proved to their satisfaction by whatever standard of proof is laid down for that issue. On those sorts of calls, perception is king. They may get it right or wrong in some philosophically objective sense, but it's their call and there's supposed to be a right answer. You want the facts, eyesight matters. Legal training doesn't. Trial court judges sometimes act as factfinders, but it's not their primary job. Supreme Court Justices almost never take that role.

Umpires also serve as cops. They break up fights, they evict the manager. They tell the batter to stop scratching his balls and get back in the box. They actually enforce the rules. Judges and Justices are never supposed to do that. And, frankly, except for those pistol packin' judges in some old westerns, they pretty much can't. President Jackson, angered by the Court's rulings in the Cherokee removal cases, is reputed to have said, "John Marshall has made his decision, now let him enforce it," and he went on to defy the Court. When the Warren Court said to integrate the schools, it happened only because the President sent in the National Guard.

But umpires are like judges, even Justices, when they interpret the rules and decide which ones apply when. Is this an infield fly situation? When the ball bounces out of the fielder's glove while he's reaching in to get it, did he intentionally release it? Where's the behavioral line that justifies tossing the manager? Those aren't things that the rule book can define precisely so the careful ump who doesn't need glasses can get them right. Nor are they rule enforcement. They are, rather, judgment calls about what rules apply and whether and when. When they're making those kinds of decisions, umpires are like judges, or Justices. But pretty much only then.

Now, let's think about judges and Justices. Some things, maybe most, really are pretty clear and simple. When you brush away the metaphorical (and literal) dust from those thousands of pages of transcripts and briefs and look at what the Constitution or the U.S. Code actually says, well, what looked troubling and difficult may not be. (As of a couple of weeks ago, almost 40% of the cases decided by the Court this years were decided unanimously; not quite 23% were those troubling 5-4 decisions. You can find those statistics and more here.)

Except, you know, the guts of the job, the parts we (all of us) care about, deal with the things that aren't simple. When the Court agrees 9-0, there's probably not much real controversy about what the law is, and the different analytical methods the Justices might use to get there won't matter much except for purposes of parlor games. Method does matter, though, in the things that are hard, in dealing with the stuff that really can have more than one right answer.

Take the First Amendment. It says, in part, that "Congress shall make no law . . . abridging the freedom of speech." Justice Black took that literally, famously saying, "'No rule' means no rule." But even he didn't really mean that, and nobody else on the Court has, either. Everyone agrees there are some limits. That Holmes chestnut from Schenck v. United States about how "[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic" comes to mind. But everyone also agrees that it's not just Congress that's limited by the First Amendment. It applies broadly to all government entities.

It's not that a Justice deciding the application of the First Amendment has to do something more than an umpire deciding balls and strikes. Regardless of how he makes the decision, the umpire knows the technical boundaries of the strike zone. He just has to decide whether the ball was in or out when it crossed the plate. The Justice is doing a different sort of thing. The Justice has first to figure out what the First Amendment means in the particular context. And that's often not self evident. What is "the freedom of speech"? What does it mean to "abridge" it? What limits, if any, are there on "no law"? What do we do with that word, "Congress"? Answer all those questions and maybe then you can decide whether the particular speech is protected.

In 1969, three students in Des Moines, Iowa, defied their school principal and wore black armbands to protest the Vietnam war. In a case called Tinker, the Supreme Court ruled that students in public schools have free speech protection, too, as long as their speech (black armbands protesting the Vietnam war in that case) wasn't disruptive. Justice Fortas, writing for the Court, said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Justice Black dissented. School is different, he said. (The Court's opinions are here.)

In 2002, the Olympic torch was being paraded through Juneau, Alaska, and one school dismissed students and said they could attend the parade. Joseph Frederick and a couple of friends did, and while there, they unfurled a banner saying, "Bong Hits 4 Jesus." Frederick was suspended. Five years later, the Supreme Court weighed in. In many respects a typical free speech case, Morse v. Frederick was decided in a 5-4 vote with the so-called liberals on the losing side. Writing for the Court, Roberts said that it was proper for a school to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Justice Thomas agreed, but said the court should have gone further, reversing Tinker and declaring that students have no free speech rights. (The Court's opinions are here.)

OK, we've got several possible answers to free speech for students, and each has something to recommend it as the best way to understand what the First Amendment means and how it applies.

1. There is free speech in schools, no rules. Period.
2. There is free speech in schools, and the limits are exactly the same as the limits on out-of-school speech by adults (whatever those limits are).
3. There is free speech, but it can't be disruptive (sort of an expansion on that fire in a crowded theater, but within the same sort of framework). That's Tinker.
4. There is free speech, but it can't be stuff the school wishes you wouldn't say. That's maybe Morse.
5. There's no such thing as free speech in schools.

Option 1 is easy. If you believe that the First Amendment isn't limited to protection against acts of Congress (and pretty much everyone does), then that's what it says, right? There shall be "no law . . . abridging . . . freedom of speech." But nobody, not even the most rigid believer that the Constitution's language controls regardless of what anyone might think about good sense or the intent of the framers believes in Option 1. Why? Well, among other things, "the freedom of speech" might be different from "freedom of speech." There are those things (obscenity and fighting words, for instance) that simply don't qualify, we're told, as First Amendment protected speech, and the article "the" is part of the reason. For another, nobody - at least nobody who's going to be politically successful enough to become a judge or Justice - is going to give a pass to "falsely shouting fire in a theater and causing a panic." And unless you think the framers were fools, you'd probably agree that they didn't mean to protect that particular speech.

Option 2 seems simple also. Why should the fact of school be relevant? Either you have a right or you don't. If juveniles have a right of free speech (and there's certainly nothing in the words of the First Amendment that indicates they don't) then why should it be special? And if free speech is available in school, why should it be limited beyond its limits on the outside?

Option 3 recognizes that school is different. School is intended to be a place where the state inculcates certain things. That's the whole idea, after all, behind compulsory education. So if you disrupt the enterprise, then you're at odds with the very reason for its existence. But schools are trying to inculcate what's at the core of the First Amendment: political awareness. Free speech with some minimal sort of restraint does that. So maybe Tinker got it right.

Option 4 takes up where 3 leaves off. If the point of school is to inculcate, why shouldn't it be to inculcate the behavioral rules the state wants us to follow? And if that's so, and if we acknowledge that society generically believes drug use is a bad thing (Bong Hits 4 Al Quaeda?), well then, shouldn't schools, in order to do their job, be able to control against speech that encourages misconduct. Hey, to bong or not to bong may be a political debate, but public schools aren't debating societies. They're designed to teach and the school gets to decide the curriculum. You want to advocate drug (ab)use, do it on your own time. Think of it as a restriction not on speech itself but on the time, place, and manner of speech - which the law has long said is OK. So maybe Morse got it right.

Option 5 has a legitimate pedigree, too. As Justice Thomas explained in Morse, there were no such things as public schools when the First Amendment was adopted. As public schools developed, nobody thought students had free speech in them. So where'd that right come from, anyway? Bunch of pointy-headed liberal judges just made it up? Out of whole cloth? It's nonsense.

Every one of those positions can be defended by the language, the history, and the fundamental goals of free speech.

For what it's worth, I think Option 2 is the right one. We'll talk about why that's so another time.