Tuesday, October 25, 2011

Roberts' Goat (Part 4: Patterns in Criminal Cases)

In his NATURE OF THE JUDICIAL PROCESS lectures, Benjamin Cardozo spoke of the "stream of tendencies" in a judge's decisions. Like his predecessor, Oliver Wendell Holmes, [Not too shabby a duo!] he spoke of "inarticulate" (i.e., unpoken), "unavowed," even "subconscious" views and perspectives that underlie a judge's work, keep it consistent on those bases, and form common threads.

This is what we've been looking for in these (much less elegantly stated) "Goat" series. The tendencies, unavowed views, consistencies, threads--i.e., the patterns.

So, without spending much time on the legal arguments in his dissents, let's look at the patterns in John Roberts' favored outcomes. Remember, there's almost always very good legal arguments on both sides of the cases that reach the Supreme Court. Any competent lawyer or Justice can find strong support in the text of the law or in the decisional precedents or in interpretive methodology to argue on behalf of either side of a legal controversy that's close enough and important enough to get to the highest court in the land.

So legal arguments are just as likely to be support for results already favored, as to be the actual reasons for reaching those results. This is not to suggest something necessarily illegitimate. A particular result may well be favored by a judge because of her view of the law--of the fundamental purpose or spirit of the law writ large. The legal arguments supporting that favored result may simply confirm for the judge the correctness of her views.

OK, 'nough of that. What about Chief Justice John Roberts' favored results?

Start with this quick overview:
In his 9 dissenting opinions discussed in the last few posts, Roberts sided with government over the individual in most of them. The exceptions were the 2 cases in which he sided with defendants guilty of domestic violence, and a 3d case in which he sided with the defendant who was ordered to pay restitution to his assault victim.

Well, maybe that's too quick and paints too simple and too unfair a picture. So let's look more closely. And let's look at the dissents from different angles to see what other patterns might emerge.
As previously noted, all 9 of the cases pit government against an individual. Let's look at the individuals in these cases, and specifically at their encounters with the government and the side Roberts took.

He sided against an individual whose car was stopped by the police based on an unverified anonymous tip.
He sided against an individual who was arrested for an uncertain activity in a "tough neighborhood."
He sided against an individual who wanted the Court to affirm his reduced sentence which corrected the 100-1 imbalance between crack and cocaine powder offenses.
He sided against another individual who wanted his sentence reduced to correct that imbalance.
He sided against an individual whose military convictions were being reconsidered and who might, as a result, avoid deportation.
He sided against an individual who was seeking asylum to avoid deportation.
On the other hand...
He sided with an individual who was held in criminal contempt for violating an order of protection after he assaulted his girlfriend.
He sided with an individual who was convicted of unlawfully possessing a firearm based on his prior assault conviction where the victim was his wife.
He sided with an individual who was ordered to pay restitution to his assault victim.

Let's look at his dissents from another angle.

Two of the cases dealt with search and seizure protections. The Court majority decided to leave those protections intact. Roberts dissented.
Two of the cases involved the deportation of immigrants. The Court majority upheld proceedings to reconsider whether deportation was in order. Roberts dissented.
Two of the cases dealt with the 100-1 sentence disparity between crack and cocaine powder offenses. The Court majority supported sentencing that corrected the imbalance. Roberts dissented.
Two cases involved claims of incompetent counsel. The Court majority supported review of those claims. Roberts dissented.
Two of the cases dealt with restitution for crime victims. The Court majority left the restitution intact. Roberts dissented.
Two of the cases dealt with punishing domestic assailants for their subsequent aggravating conduct. The Court majority upheld the punishment. Roberts dissented.

Of course, Roberts might have had the better legal argument in some of these cases. Some of his dissenting opinions were strong and well supported. But remember--as I've repeated, perhaps ad nauseam at this point--there are strong, well-supported arguments on both sides of the issues in these cases.

The question is, which strong and well-supported arguments did he choose? That is, which side's arguments did he choose in these cases, and what are the patterns in the sides that he took? Cardozo's "stream of tendencies!"

Let's look at these same cases again. But this time let's look at them with a deliberate bias in the Chief Justice's favor.
In the 2 search and seizure cases, he sided with police efforts to combat drunk driving and drug trafficking.
In the 2 deportation cases, he sided with immigration officials to remove a convicted criminal and foreign-nationals who had no legitimate entitlement to remaining in this country.
In the 2 100-1 sentence disparity cases, he sided with law enforcement to impose the harsh, legally authorized punishments for crack cocaine offenses.
In the 2 incompetent counsel cases, he sided with immigration officials against individuals who belatedly and improperly claimed that their attorneys were ineffective.
In the 2 restitution for crime victims cases, he sided against the government and with the defendants because the restitution proceedings were untimely or impermissibly initiated.
In the 2 domestic assailant cases, he sided against the government and with the defendants because one defendant's assault conviction, in fact, had no domestic element to it, and the other defendant was held in criminal contempt in a proceeding impermissibly initiated by the victim, a private person.

Now this is just as accurate a characterization of the cases as the previous listings. But regardless of how the cases and Roberts' dissents are framed, he seems clearly to favor a strict, inflexible application of legal rules--except perhaps in the search and seizure cases where he seems quite flexible in finding justification for a stop or an arrest. Even that, however, can be seen as his favoring a strict application of criminal law against offenders.

The flip side of his apparent preference for strict application, however, is an absence of balancing the equities, of considering the overall justice or fairness of the outcome--both as it affects the individuals involved and as his preferred ruling would affect others. And that applies to his seeming inflexible application of legal rules and to his flexibility in justifying search and seizures.

It also applies to how he views what other courts may and may not do. So, e.g, he opposed a trial judge's outright rejection of the the sentencing guidelines to ameliorate the 100-1 disparity. He opposed the military appeals court's exercise of collateral review to reconsider convictions. He opposed a trial judge's holding a criminal contempt proceeding initiated by a crime victim against her repeat assailant. He opposed the appellate review of an ineffective counsel claim where the precise legal basis for the right to counsel in question was not explicitly identified. And he opposed a state supreme court's adoption of search and seizure protection for drivers because he believed it would hinder strict enforcement of drunk driving laws.

On the other hand, he apparently cared less about equal, fairer sentences; or about guilty pleas entered as a result of incompetent counsel; or about victims of domestic violence being denied restitution; or about an immigrant being deported because of incompetent counsel in asylum proceedings; or about drivers being stopped based on entirely unverified anonymous phone tips; etc., etc., etc. No, none of that got his goat.

You get the point. Two sides--actually, at least 2 sides--to all of these cases. And there are pretty well defined patterns to the Chief Justice's dissents in these cases. Pretty well-defined, that as, as to what gets his goat and what does not.

Next in this series, we'll look at Roberts' dissents in civil cases. By this time, I'll bet you can guess the patterns.

[Before continuing this series on Roberts, we'll turn our attention to what is long overdue--I've been awaiting the right frame of mind. That's the annual Saratoga Highlights. It will be especially terrific this year (Yes, I just called my own posts "terrific"!) because of the photos taken and supplied to me by Bob Mayberger--great lawyer, great photographer, great lover of horse racing. So, just in time to get psyched for the Breeders' Cup, Saratoga Highlights is on its way!!!]