Saturday, October 15, 2011

Roberts' Goat--What Gets It? (Part 2: The Chief Justice's Dissents in Criminal Cases)

In the last post, we took a quick look at John Roberts' most recent 15 dissents. Just the bare bones bottom line description of the disagreements he had with the majority of his Court. Disagreements about which he felt so strongly that he was driven to author a dissenting opinion. (See Roberts' Goat--What Gets It? (Intro: The Chief Justice's Dissents), Oct. 7, 2011.)

Let's look a bit more closely now. Not microscopically. But close enough to get some of the essential details of the cases, the Court's decisions, and Roberts' disagreements. Even the cursory outline in the last post suggested some patterns--some tendencies, leanings, predispositions, and, apparently, some of what gets the Chief Justice's goat. A closer look may well sharpen the focus and uncover some additional insight. So let's get started.

First, let's look at the criminal cases. There are some identifiable categories under which they fall. So let's group them that way--at least for starters.

Search and Seizure
There were 2 of these in which Roberts' dissented--again, where he wrote a dissenting opinion himself; not where he simply joined someone else's dissent.

In Pennsylvania v. Dunlop, the police saw the defendant exchange words and objects with another on a corner in a "tough" neighborhood. They arrested him, and the exchange turned out to be a drug transaction.
The Pennsylvania Supreme Court held that the arrest was invalid. The police lacked probable cause: they didn't see what was being exchanged, they only saw one such transaction, they didn't have any history with the defendant, and the defendant didn't even flee when the police approached him.
The Supreme Court didn't think that the case was worth reviewing and reversing, so it let the state high court's decision stand.
Roberts dissented. He argued that the police were justified in making the arrest based on their common sense and experience. He complained that the ruling of the Pennsylvania Supreme Court "will make it more difficult to conduct drug interdiction in high-crime areas."
The vote was 7-2. Only Justice Kennedy joined Roberts.

In Virginia v. Harris, the police received an anonymous tip about a drunk driver. An officer followed the defendant, but he saw nothing that confirmed the tip, nor did he see the defendant commit any traffic infraction. Nevertheless, the officer stopped the defendant and administered sobriety tests. The defendant failed.
The Virginia Supreme Court invalidated the stop. The court did so on the ground that the anonymous tip, without any corroboration whatsoever, did not give the officer any justification--i.e., reasonable suspicion--to stop the driver.
The Supreme Court didn't think this case deserved review either, and it let the decision of the state high court stand.
Roberts dissented. He complained that the decision of the Virginia court would "undermine [] efforts to get drunk drivers off the road."
The vote was 7-2. Only Justice Scalia joined Roberts.

There were 2 cases involving the application of the federal sentencing guidelines.

In Spears v. U.S., the trial judge categorically rejected the federal sentencing guideline, in effect at that time, which punished crack cocaine offenses 100 times more severely than offenses for powder cocaine. The judge, instead, applied a more lenient disparity--i.e., the 20-1 ratio that the federal sentencing commission was then recommending as more appropriate.
The federal court of appeals reversed the trial judge. It ruled that he had no authority to reject the guidelines outright.
The Supreme Court, however, granted review and summarily reversed the court of appeals, approving the trial judge's decision. In it's per curiam opinion, the majority reaffirmed that the guidelines were only advisory. A trial judge, the Court held, was permitted to reject the 100-1 ratio categorically and impose a lesser sentence the judge deemed more fair.
Roberts dissented. He argued that some language in the Court's recent precedent seemed to support the court of appeals view (a harsher sentence)--not what the trial judge did (the lesser one). According to Roberts, the Supreme Court should have left the court of appeals' decision alone (again, the harsher sentence) by simply not reviewing the case.
The vote was a variously split 5-1-1-2, with only Justice Alito joining Roberts.

In Freeman v. U.S., the defendant pled guilty to a crack cocaine offense and the trial judge imposed sentence. The judge believed the sentence was appropriate under the sentencing guidelines' more severe punishment for crack offenses than for powder cocaine offenses. Subsequently, however, those sentencing guidelines were amended. The 100-1 disparity was significantly reduced. Moreover, the amendment made the reduction retroactive.
Nevertheless, when the defendant moved for a reduced sentence in accord with the amendment, he was turned down by the trial judge, and the court of appeals affirmed that decision.
The Supreme Court, however, reversed. The Court ordered the trial judge to reconsider the original sentence in light of the retroactive amendment, because that original sentence had been imposed in light of the 100-1 disparity in effect at the time.
Roberts dissented. He argued that the defendant was not entitled to any reduction of his sentence because he had agreed to it as part of his plea arrangement with the government. The agreed upon sentence, according to Robert, was likely based on considerations other than the 100-1 sentencing guideline.
The vote, in pertinent part, was 5-4. Justices Scalia, Thomas, and Alito joined Roberts.

Well, that's 4 of Roberts' dissents in criminal cases. We'll stop here for now and finish the remaining ones (among his most recent 15 total dissenting opinions) in the next post. But even at this point, some patterns are emerging. 

In every one of these cases, Roberts sided with the prosecution. If you prefer, he opposed the accused. He had reasons in each case. Of course. There are pretty good reasons on both sides in these cases. That's why they get as far as the Supreme Court! But, but, but....

When a judge always, or typically, happens to pick the reasons that just happen to support a particular side or result, well something else is going on. So, for example, in these 4 cases we just discussed, Roberts always just happened to pick the reasons that put him on the side of the prosecution and against the accused. The reasons he argued in each of these cases were very different. But they always just happened to lead to his supporting the same side.

Yes, we've only examined 4 cases so far. But these are cases about which Roberts felt strongly enough that he wrote a dissenting opinion. These are cases where his Court's decisions disturbed him enough that he took the time and effort and---well, you know, we've been discussing it a good deal--he thought it important enough to publicly disagree with his colleagues. And in each one of these 4 cases where he felt so strongly-- in each case that got his goat--he made arguments that just happened to support the prosecution and oppose the accused. Or, if you prefer, in none of these cases, did he dissent in favor of the accused or against the prosecution.

But let's withhold judgment, at least until we look at the other criminal cases in which Roberts dissented. It may not be a simple matter of prosecution versus accused. We'll see. Maybe.

One thing is for sure, however, there are some very interesting patterns (as in curious, at the least) when we look at the cases to come in the next post, and then all of the cases--all of Roberts' criminal dissents--together.