The Skinny on Roberts' Goat--What Did and Didn't Get It (Part 7: Conclusion)

So, just what do John Roberts' dissenting opinions tell us?

For the last several posts on New York Court Watcher, we've been looking at the Chief Justice's public disagreements with his colleagues. His public complaints about what the majority of his Court decided. What did he reveal about himself? What are the implications of what upset him--of what got his goat? Yes, what's the skinny on Roberts?

["Skinny" isn't part of my everyday vocabulary. But it did seem like an appealing fit.]


Let's recap. But let's first do it by considering what Roberts did not dissent about. What he did not complain about.

He did not complain about the rights of the accused being violated.
--Not about searches without warrants.
--Not about incompetent legal representation.
--Not about excessive and unequal sentences.

Oh, there is an exception. Domestic violence cases.
Roberts did side with those accused of domestic assault.
Roberts did complain about the conviction and the criminal contempt of domestic assailants in 2 cases.
[Yes, I confess, I do find this aberration in Roberts' typically anti-accused stances to be quite curious--indeed, unsettling.]

Roberts' Goat (Part 6: Civil Cases [cont'd.])

In the last post, we outlined the civil cases among the total of 15, criminal and civil, in which the Chief Justice authored his most recent dissenting opinions. We then looked a bit more closely at 3 of those civil cases. In this post we'll look a bit more closely at the remaining civil cases among that group.

Recall that in the 3 civil cases already discussed: Roberts dissented against an railroad worker being compensated for his injuries because, in Roberts' view, the railroad wasn't negligent enough. He dissented against a state agency created to protect the mentally disabled because, in his view, the agency should not be permitted to sue the offending state officials in federal court. And he dissented against a foreign national seeking asylum because, in his view, that individual was not sufficiently specific about the legal basis for his incompetent counsel claim.

Again, yes, Roberts had his reasons. But so did the majority that sided with the injured worker, with the state agency protecting the mentally disabled, and with the foreign national seeking asylum. In each case, however, Roberts chose the reasons that put him on the side opposing those interests. (See Roberts' Goat (Part 5: Civil Cases), Nov. 7, 2011.)


What about his dissents in the other civil cases? He dissented in favor of a bank that was sued by a consumer for violating credit card laws. He dissented in favor of a judge who presided over an appeal by a coal company that spent $3 million to get him elected. He dissented in favor of a state that failed to build an interstate radioactive waste facility that was agreed upon and funded by a multi-state commission of which it was a member. And he dissented against a water district and power company that sought to participate in a bi-state dispute over river water in which they had significant interests. Hmmm.


Let's look closer.

Roberts' Goat (Part 5: Civil Cases)

We've already looked at the Chief Justice's dissenting opinions in criminal cases. Pretty revealing about what bothers him--gets his goat. So much so that he is driven to expend his time, resources, and collegial capital to take a public stance against the majority of his Court. (See Roberts' Goat (Part 4: Patterns in Criminal Cases), Oct. 25, 2011, and the immediately preceding 3 posts.)

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.

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.

Roberts' Goat (Part 3: Criminal Cases--Immigration, Domestic Violence & Victim Restitution)

Immigration, domestic violence, and victim restitution. That's what's involved in the 5 dissents of the Chief Justice we'll now discuss. They're interesting. Even peculiar and curious.


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.

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.

Roberts' Goat--What Gets It? (Intro: The Chief Justice's Dissents)

What gets John Roberts' goat? What does the Chief Justice feel strongly about?

In the last few posts, we explored "Lippman's Goat--What gets It." (See Lippman's Goat--What Gets It? (Part 3: Civil Cases), Sept. 21. 2011, and the preceding 2 posts in the series. See also Justice Alito's Goat--What Gets It? (Part 4: One Last Thing), March 7, 2010, and the 3 preceding posts in that series.)

Looking at the 15 dissenting opinions written by Jonathan Lippman over the course of the last year, we got a good idea of the kinds of issues New York's Chief Judge feels strongly about. Strongly enough, that is, to author a dissent. As stated in one of those posts:

Strongly enough, that is, to spend the time, effort, and collegial capital to explain in a written opinion why the majority of the court is wrong. Strongly enough, that is, that the majority's position, the court's decision, gets the judge's goat.

Yes--and for that reason not surprisingly--those dissenting opinions were particularly revealing about the state's top judge.

Well, what about the nation's top judge? What can we glean from Chief Justice Roberts' dissenting opinions? That is, from the disagreements he has expressed publicly with the decisions of his Court--the positions he has taken in opposition to those adopted by a majority of his colleagues on the United States Supreme Court?

Lippman's Goat--What Gets It? (Part 3: Civil Cases)

We previously looked at Jonathan Lippman's dissents in criminal cases. Let's now take a look at the ones he wrote in civil cases.

In the last post, we saw that the Chief Judge of New York authored dissenting opinions in 10 criminal cases during the Court of Appeals' 2010-11 term. In each dissent, he sided with the accused. In each, he disagreed with the majority for not protecting the rights of the accused to the extent that, in his view, was required either specifically by the law or by fundamental fairness. Taken together--i.e., connecting the dots--his dissents in those cases make at least one thing clear. What gets Chief Judge Lippman's goat in criminal cases is government violating the accused's rights or engaging in basic unfairness, and then his court excusing such conduct--misconduct or error, in his view. (See Lippman's Goat--What Gets It? (Part 2: Criminal Cases), Sept. 19, 2011.)

Lippman's dissents in civil cases similarly manifest a clear pattern. The Chief Judge authored 5 such dissenting opinions. Here they are.

Lippman's Goat--What Gets It? (Part 2: Criminal Cases)

New York's Chief Judge, Jonathan Lippman, authored 10 dissenting opinions in criminal cases last year. Let's take a look at those disagreements with his court, and see what kinds of issues moved him to split with the majority of his colleagues and to do so in a public writing.

As noted in the last post, Chief Judge Lippman authored a total of 15 dissenting opinions during the course of the 2010-11 term. (I.e., the calendar beginning August 2010 after the court's summer break, and continuing through its final decision days at the end of June 2011.) He was tied with Judge Robert Smith for the highest number of written dissents among the seven judges on the state's high court. (See Lippman's Goat--What Gets It? (Part 1: Introduction), Aug. 30, 2011.)

[Dissenting opinions are especially revealing. We've discussed that point numerous times on New York Court Watcher. There are lots of disagreements among the members of an appellate court. This is particularly true on a court of last resort. On those high courts, virtually all the cases present genuine issues--i.e., there are good, reasonable, legitimate arguments supporting both sides. But typically, the different views among the judges or justices are aired only when at least one of them feels strongly enough to go public with the disagreement.

Strongly enough, that is, to spend the time, effort, and collegial capital to explain in a written opinion why the majority of the court is wrong. Strongly enough, that is, that the majority's position, the court's decision, gets the judge's goat. (See e.g., Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010.)]

So what disagreements were so important to Chief Judge Lippman that he chose to go public? What disagreements did he feel strongly enough about to spend the time, effort, and collegial capital on a dissenting opinion? What got Lippman's goat?

Lippman's Goat--What Gets It? (Part 1: Introduction)

New York's Chief Judge, Jonathan Lippman, has been dissenting quite a bit. In fact, he has been dissenting more than any of his colleagues. That's what a survey of the 2010-2011 term (August 2010 through July 2011) shows.


[Some of my findings have already been reported in the New York Law Journal: "No Predicting 'Common Sense' Court Open to Dissenting Voices," by Joel Stashenko, Aug. 8, 2011.(http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202511503087&No_Predicting_Common_Sense_Court_Open_to_Dissenting_Voices .)]

Among the seven members of New York State's highest tribunal, the Court of Appeals, Lippman leads in both the number of dissenting opinions authored and the total number of dissenting votes cast. Actually, he is tied for 1st place with Judge Robert Smith for writing dissents, but he is alone in 1st place for dissenting votes.

To be specific, Chief Judge Lippman authored 15 dissenting opinions. These are full opinions--not just a line or two indicating agreement with someone else's dissent. He joined another 13 dissenting opinions written by some other member of the court. That total of 28 dissents by the top judge topped his court.

Justice Alito's Goat--What Gets It? (Part 4: One Last Thing)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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Were the other conservatives on the Court with Alito? When Justice Samuel Alito wrote a dissent, was he joined by the other conservative Justices on the Court? In those cases where he dissented, was it simply a matter of the liberal Justices versus the conservatives? Did Alito's dissenting opinion simply represent the views of the Court's conservative bloc?

Stated otherwise, when a decision of the Supreme Court--i.e., of a majority of the Justices--was so wrong in Alito's view that he authored a dissenting opinion to air his disagreement publicly, did the other conservative Justices share his view? Did the other conservatives share his view at least enough to join his dissenting opinion, if not to write one of their own? In short, did the decisions that got Alito's goat also get the goats of the other conservatives?

Let's see. Let's revisit those 10 cases from the last 2 posts. (The last 2 posts in this series on New York Court Watcher looked at the 10 most recent Supreme Court decisions against which Justice Alito authored a dissenting opinion. See Justice Alito's Goat--What Gets It? (Part 3: Connecting the Dots), Feb. 28, 2010; (Part 2: His Dissents), Feb. 22, 2010.)

Justice Alito's Goat--What Gets It? (Part 3: Connecting the Dots)

Haiti
[Just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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So let's put it together. Justice Samuel Alito's dissents. In the last 2 posts on New York Court Watcher, we discussed the value of dissenting opinions in providing insights about the author, and we looked at the last 10 dissents that Alito has written. (See Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010; (Part 2: His Dissents), Feb. 22, 2010.)

President Obama's State of the Union criticism of a Supreme Court decision got Alito's goat. Some of the Court's decisions have evoked criticism by Alito himself. They provoked him into writing dissenting opinions. Like Obama's remarks, they got his goat.

Here's a recap of those last 10 dissenting opinions of Alito that we looked at in the last post. They're out of chronological order and reorganized into some general subject matters. Connect the dots.

Justice Alito's Goat--What Gets It? (Part 2: His Dissents)

Haiti*************************************************************************

Justice Samuel "Not True" Alito.

At the State of the Union last month, President Obama criticized a recent Supreme Court decision. Alito was caught on camera visibly taking offense and verbally taking issue.

Alito did not hide his displeasure or disagreement with the criticism. He had been part of the majority that rendered the deeply divided and widely denounced campaign finance decision in the Citizen's United case. He was evidently in no mood to sit idly by while taking a hit from the President.

The question raised in the last post on New York Court Watcher is: what else gets Alito's goat? As was discussed in that post, one of the best places to look for what really moves or incites an appellate judge is that judge's dissenting opinions. So we're going to look at Alito's. At the dissenting opinions he wrote.

These aren't all the disagreements that he's had with his fellow Justices. But these are disagreements which he considered so important, or where he considered his colleagues so wrong, that he felt it necessary to break with them publicly and to explain why in his own written opinion. These strong disagreements should tell us a good deal about Alito. (All of the foregoing was explained more fully in that last post: Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010.)

So let's take a look at Justice Alito's last 10 dissents. Specifically, what did the majority of his colleagues decide the last 10 times that Alito was provoked into writing a dissenting opinion? Stated otherwise, what rulings really got his goat?

Justice Alito's Goat--What Gets It? (Part 1)

Haiti
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Justice Samuel Alito was really steamed at the State of the Union address a couple of weeks ago. Yes, Obama's criticism of a recent Supreme Court decision clearly got Alito's goat. What else does?

First, a brief recap of the now infamous incident. I say "infamous" because virtually everyone thinks that either the President or the Justice was out of line. The choice is typically pretty revealing. But that's another matter.

In his State of the Union address, President Obama criticized the Supreme Court's recent decision in Citizens United v. Federal Elections Commission. Justice Alito apparently believed that the President had mischaracterized the Court's ruling. As readers of this blog surely know, a bare majority of the Justices, including Alito, held that the McCain-Feingold Act's limits on corporate spending for election campaign ads violated free speech.

Obama said that the ruling opens the floodgates for spending by foreign corporations in American elections. A visibly upset Alito was immediately caught on camera openly repeating "Not true."

No doubt, goat got!

So what else really annoys, irritates, even infuriates Justice Alito? What else bothers him, disturbs his tranquility, raises his blood pressure enough that he's willing to express his displeasure so openly?

A good place to look is his dissents. The dissenting opinions he authored. These are the disagreements with his colleagues' rulings where he felt strongly enough that he chose to go public. Strongly enough that he chose to spend his time and use his staff and resources to compose a personal statement to say that his colleagues are wrong. The personal statement does not change the outcome of a case. It only serves to make public the author's disagreements, criticisms, and deeply held beliefs that the majority of his colleagues have made a mistake. A mistake that is so big and so bad that he cannot in good conscience be silent and just go along.

More often than not, despite the near-obligatory "I repectfully dissent," these personal statements are harsh critiques, warnings of untoward consequences, or censures for irresponsible abuse of judicial power. In short, a dissenting opinion is usually the authoring Justice's personal tongue-lashing (pen-lashing?) of his colleagues. And it's one that is so ardently felt that the Justice feels compelled to go public.

So what are the rulings that got Justice Samuel Alito's goat? The decisions reached by a majority of his colleagues that he thought were so wrong that he just had to write a dissenting opinion to tell the world? Now these would tell us at least as much about Alito as they would the decisions of his colleagues.

So let's look.

In the next post on New York Court Watcher, we'll do just that. We'll look at Justice Alito's dissents. To avoid any cherry-picking, unconscious or otherwise, we'll simply look at his last 10. More precisely, we'll look at the last 1o rulings of the Supreme Court that got Alito's goat enough that he wrote a dissent.

(I'm just about finished doing that. So the next post will follow very shortly.)