Now lets look at his dissents in civil cases. Recall that we are looking at his most recent 15 dissenting opinions. [That number was chosen because we had previously surveyed the dissenting opinions of New York's Chief Judge, Jonathan Lippman, over the past year, and they happened to number 15. See Roberts' Goat--What Gets It? (Intro: The Chief Justice's Dissents), Oct. 7, 2011.]
Recall also that we are looking at dissenting opinions. These are entirely optional. These are personal statements. Not opinions written for the Court. Not opinions written to hold onto a majority vote. These are opinions written only because the author thinks--or feels--that the Court's decision, i.e., the position taken by the majority, is so wrong that no compromise is possible. It must be criticized publicly.
OK, so what did the Chief Justice dissent about? What positions did he take in his dissenting opinions in civil cases? Briefly, here they are:
- He argued that a railroad worker who was injured on the job was not entitled to compensation.
- He argued that a state agency created to protect the rights of the mentally disabled was not allowed to sue state hospitals on their behalf.
- He argued that an immigrant seeking asylum was not entitled to a hearing to determine if his attorney was incompetent. (We looked at this one in the criminal cases as well.)
- He argued that a judge who won election with the $3 million help of a coal company could preside over an appeal by that coal company.
- He argued that a credit card holder could not sue the issuing bank for violating state law, but must submit to the bank's preferred arbitration.
- He argued that a multi-state commission could not sue a member state that failed to live up to its agreement to complete a commission-funded radioactive waste facility.
- He argued that a bi-state water district and a private company could not participate in a river dispute between 2 states.
Sure, he's smart. He had good reasons. But so did the other side. Yet he chose the reasons that supported the positions he took. Or, he was swayed by those reasons rather than by the one's adopted by the majority. In short, in all these cases he could have gone the other way. But he didn't. He chose the way he went. Yes, chose. And these are the disagreements on which he chose to go public.
Let's look just a bit more closely at these civil cases and at Roberts' dissents. We'll start with a couple in this post, and finish in the next.
In the railroad worker's case, CSX v. McBride (2011), the majority upheld a verdict for an injured railroad worker. The Court held that the law (the Federal Employer's Liability Act [FELA]) made railroads liable whenever their negligence caused, in whole or part, injuries to their employees.
Roberts disagreed and argued that workers should be entitled to compensation only if the railroad's negligence was the direct and proximate cause of their injuries.
The ruling was 5-4. Justices Scalia, Kennedy and Alito, joined Roberts. (Justice Thomas joined the majority.)
In the case involving the rights of the mentally disabled, Virginia Office for Protection and Advocacy v Virginia Dept. of Behavioral Health (2011), an agency established in accordance with federal law by the state of Virginia, for the purpose of advocating for the mentally disabled, sought patient records from state hospitals. When the hospitals refused to disclose the records, the agency sued in federal court under the federal law.
The Supreme Court majority ruled that the agency could sue in federal court because federal rights were involved and because Virginia gave the agency the authority to sue.
Roberts disagreed and argued that the federal system established by the Constitution gave states sovereign immunity from such suits in federal court.
The ruling was 6-2. Justice Alito alone joined Roberts. (Kagan took no part.)
In the immigrant case, Machado v. Holder (2010) [Again, we previously discussed this case with the criminal cases.], a foreign national, legally in this country, sought asylum on the ground that he would suffer religious persecution and torture if returned to his homeland. Asylum was denied by immigration officials and the federal appeals court affirmed.
The Supreme Court majority, on the suggestion of the federal government itself (the Department of Justice), summarily vacated the decision below. It sent the case back for a full examination of the claim that the foreign national's attorney at the asylum proceedings was incompetent.
Roberts disagreed and argued that the claim of incompetent counsel was not specific enough. The foreign national (Well, his appellate lawyer.) didn't identify the statutory basis for such a claim. He only mentioned the 5th Amendment which was rejected.
The ruling was 5-4. Justices Scalia, Thomas, and Alito joined Thomas.
We'll look at the remainder of Roberts' civil dissents in the next post. But at this point just consider this: he wrote a dissenting opinion against an injured railroad worker on the ground that he thought the railroad should have to be even more negligent than it was; against the agency advocating for the mentally disabled on the ground that state hospital officials should be entitled to sovereign immunity in federal courts; and against an immigrant seeking asylum because the immigrant wasn't sufficiently explicit (or specific) about the legal basis for his entitlement to a competent lawyer.
Hmmm. Getting a sense about Roberts?
We'll continue in the next post.