Among John Roberts' 15 most recent dissenting opinions--the 15 we're looking at in this "Roberts' Goat" series--he wrote 2 in cases involving immigration deportation proceedings. He wrote another 2 involving proceedings against domestic violence convicts. And he wrote another in a case involving restitution for the victim of a violent crime.
Like the 4 criminal cases discussed in the last post, these 5 cases each involved law enforcement against an individual. Law enforcement against an immigrant--a legal immigrant--in 2 of them. Law enforcement against an individual who committed a violent crime in 3. In each of these 5 cases, an individual faced conviction, punishment, or some other loss of liberty or property at the hands of a prosecutor, a judge, or some other government authority.
Yes, Roberts' dissents in these 5 cases suggest some interesting patterns--interesting, that is, to say the least. Keep in mind, these are the cases in which the Court's decision got his goat.
Immigration
Again, there were 2 cases involving immigration proceedings in which Roberts wrote a dissent. The first was the review of a lower court's decision in a criminal case. The second was not strictly a criminal case. But it's included here because it also dealt with the government seeking to deport an immigrant.
In U.S. v. Denedo, a foreign national who was serving in the U.S. Navy--and had become a lawful permanent resident--was court-martialed for theft offenses. He pled guilty, was discharged from the Navy, and, several years later, the Department of Homeland Security began deportation proceedings based on the convictions. The defendant then petitioned the military courts to overturn his convictions. He claimed that his court-martial lawyer had assured him that he would not have to worry about being deported if he pled guilty.
The highest military court, the U.S. Court of Appeals for the Armed Forces (CAAF), ordered that the defendant's claim be reviewed. The Supreme Court, in an opinion by Justice Kennedy, agreed with CAAF and sent the case back to the military courts to reconsider the convictions.
Roberts dissented. He argued that military appellate courts had no power to reconsider court-martial convictions. According to him, military courts were not specifically granted the power to issue writs of coram nobis--i.e., to conduct a collateral review as they were being asked to do here.
The vote was 5-4. Justices Scalia, Thomas, and Alito joined Roberts.
In Machado v. Holder, a foreign national, who had legally entered the U.S., sought asylum on the ground that he would suffer religious persecution and torture if he returned to his home country. His request was denied, and Homeland Security initiated removal proceedings. Following proceedings before the immigration judge and then the board, the foreign national was ordered deported. On appeal, the federal court of appeals affirmed.
The Supreme Court, in a one paragraph decision, summarily vacated the court of appeals ruling and sent the case back for reconsideration. As the Department of Justice had itself conceded in its brief to the Supreme Court, the court of appeals had not fully considered the foreign national's claim that his attorney in the immigration proceedings was incompetent. The Supreme Court majority ordered the claim to be fully examined.
Roberts dissented. He argued that the foreign national had only referred to the 5th Amendment's Due Process clause--which was considered and rejected by the lower court. Any other legal basis for the ineffective counsel claim--e.g., a statutory entitlement--was waived by the foreign national because he didn't specifically identify it.
The vote was 5-4. Justices Scalia, Thomas, and Alito joined Roberts.
Domestic Violence
There were 2 cases involving domestic violence. One involved the violation of an order of protection; the other involved firearm possession following an assault conviction.
In Robertson v. U.S. ex rel. Watson, the defendant assaulted his girlfriend who then obtained an order of protection against him. He violated the order and assaulted his girlfriend again. Shortly thereafter, he was indicted for the first assault and pled guilty. The victim then filed a motion to hold the defendant in criminal contempt for having violated the order of protection.
After a 2 day trial, the the defendant was found guilty of criminal contempt, was sentenced, and was ordered to pay restitution to the victim.
The Supreme Court initially granted cert, agreeing to review the criminal contempt proceedings, but subsequently decided not to--i.e., the court decided to "dig" [Dismiss as Improvidently Granted] the cert grant.
Roberts dissented. He argued that the victim had no right to institute criminal contempt proceedings; that criminal contempt proceedings are criminal prosecutions that only the government can litigate.
The vote was 5-4. Roberts was joined by Justices Scalia, Kennedy, and Sotomayor--the latter 2 in a separate opinion stating their understanding that the dissent was narrow and was not addressing civil contempt or any other enforcement of protection orders. [Notably, Justices Thomas and Alito joined Justices Stevens, Ginsburg, and Breyer in the majority.]
In U.S. v. Hayes, the defendant was convicted of assault ("battery" under West Virginia law)--the victim being his wife. Two years later, responding to a domestic violence call, the police discovered that defendant had a rifle. He was charged with violating the federal law prohibiting the possession of a firearm by someone previously convicted of a crime of domestic violence. He pled guilty, but conditioned the plea on the outcome of his appeal regarding the applicability of the firearms statute to his case.
The Supreme Court ruled that the statute did apply. The assault of which the defendant had been convicted was a "crime of domestic violence" because his victim was his wife. That triggered the firearms prohibition.
Roberts dissented. He argued that the firearms prohibition did not apply because the defendant's assault conviction was not for a "crime of domestic violence." The assault law under which the defendant had been convicted did not specify that the victim had to be a spouse or any other domestic relationship. Although the firearms crime required proof beyond a reasonable doubt that the victim of the assault was a domestic relationship, the assault crime itself did not.
The vote was 7-2. Only Justice Scalia joined Roberts. [Notably, Justices Thomas and Alito joined Justices Stevens, Breyer, Sotomayor, and Kagan in Justice Ginsburg's opinion for the Court.]
Victim Restitution
Roberts wrote dissents in 2 cases dealing with restitution for crime victims. We already discussed 1 of them under the domestic violence heading, Robertson v. U.S. ex rel. Watson. Here's the second one.
In Dolan v. U.S., the defendant pled guilty in federal court to a serious injury assault committed on an Indian reservation. The trial judge imposed sentence and later notified the parties that he was scheduling a hearing, under the Mandatory Victims Restitution Act, to determine the losses suffered by the victim and, accordingly, the amount of restitution the defendant would have to pay. At that scheduled hearing, the defendant objected on the ground that the Act requires restitution hearings be held no later than 90 days after sentencing. That 90 days had passed.
The trial judge who had scheduled the hearing rejected the defendant's objection. He then ordered the defendant to pay $250 monthly to the victim toward a total amount exceeding $100 thousand.
The Supreme Court upheld the restitution order. The 90 day deadline was intended to help victims receive payment promptly, not to benefit defendants who could request a timely hearing. Moreover, the statute says nothing about the consequences of a late hearing, and certainly doesn't contemplate depriving victims of restitution when a trail judge exceeds the 90 days.
Roberts dissented. He argued that, although the law mandates restitution, it also sets a 90 day limit on ordering it. Victims may suffer when a trial judge makes a mistake, but that is the necessary consequence of the 90 day rule.
The vote was 5-4. Justices Stevens, Scalia, and Kennedy joined Roberts. [Notably, Justices Thomas and Alito joined Justices Ginsburg and Sotomayor in Justice Breyer's opinion for the Court.]
Well, there are the 5 cases. Together with the 4 discussed in the last post, they constitute the 9 criminal cases in which Chief Justice Roberts authored a dissent. Actually, they are the 8 criminal and 1 quasi-criminal cases pitting law enforcement against an individual who is subject to conviction, punishment, or some other loss of liberty or property.
In short, the cases dealt with search and seizure rights, sentencing, immigration, domestic violence, and restitution. Clearly, there are patterns in Roberts' dissents. Patterns to what gets his goat.
Again, keep in mind: these are the cases in which he felt strongly enough about the Court's decision that he felt compelled to issue a public disagreement, to write a dissenting opinion. Roberts has averaged 5 dissenting opinions a year. These are the cases, among that annual 5, which bothered him so much that he chose to author a dissent.
We'll discuss patterns in these dissents in the next post in this series.
