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The Gift That Keeps on Giving

March 31, 2008 3:51 PM

It was pretty quiet at the Court today, so I figured I'd use the time to call your attention to one of the Chief's favorite cases. It made a big appearance in his opinion last week in Medellin v. Texas, when the Court said both an international court and President Bush lacked authority to order new hearings for 51 Mexican nationals on Death Row.

But first, here are the top three things we got today:

---The Court refused to get involved in the fight between the Justice Department and Rep. William Jefferson, the Louisiana Democrat facing bribery charges, over an FBI raid of his office. The Bush Administration had argued that the FBI has broad authority to search congressional offices when members are under criminal investigation, but the justices declined to step into the case. That means a lower court decision siding with Jefferson--which said the FBI violated the Constitution when it reviewed documents in his office--will stand.

---Taking up a significant religion case, the Court announced it will consider whether a religious group in Utah can put its display in a public park. The justices will hear arguments next fall in the case, which could set important guidelines for religious displays in public spaces. The case came about after officials in Pleasant Grove City, Utah refused to allow a religious group known as Summum from displaying a "Seven Aphorisms of Summum."  The group (which was founded in 1975 and believes in the “mummification of transference,” as it explains on its website) said it should be able to erect the monument in the park, since it contained a Ten Commandments monument. The city said if it allows the Summums, it will have to allow all kinds of monuments—and next thing you know, the park will look like some kind of putt-putt golf course.

--And in the only decision of the day, Delaware triumphs over New Jersey in the battle over a proposed natural gas terminal on the Delaware River. The Court said Delaware shares control over the land with New Jersey and could therefore block the project--which it is almost certainly going to do.

So with that out of the way, on to Medellin and the gift that keeps on giving: Grubart v. Great Lakes Dredge & Dock Co.

As is clear to everyone by now, Roberts is a justice who likes “bright-line” rules. He understands the costs of uncertainty that come with multi-factor tests. He’d rather have a good, predictable rule so litigants can better understand how to behave in the future and lower courts will have a clearer idea what the law is.

And long before he became Chief Justice of the United States, Roberts had a favorite passage in a favorite opinion that he often used to make his point.

The passage was in a 1995 opinion over liability for the great Chicago flood of 1992. For those of you who weren’t fortunate enough to live in Chicago then (remember the names “Jordan,” “Pippen,” “Grant”?), it was an unbelievably bizarre “dry” flood---you didn’t see a single drop of water if you were walking around in the Loop.

The Chicago River had flooded basements throughout downtown after crews working on a barge operated by Great Lakes drove a piling into an abandoned tunnel that (unknown to anyone) ran beneath the river. Water seeped out and the “flood” shut down the city for three days, costing Chicago nearly $2 billion.

So the issue of liability was intensely litigated. Roberts argued the case in the Supreme Court for Great Lakes, which was facing $400 million in damages since its crews inadvertently helped cause the flood. The issue was a technical one over the use of admiralty law, and Roberts prevailed in a unanimous decision for Great Lakes.

But even putting aside the result, Roberts has said the case is one of his favorite opinions because of what the Court said.

He liked one passage in that opinion so much—it was written by Justice Souter---that he repeatedly cited in written briefs in other cases and, later, in opinions as a federal appeals court judge. In a 10-year-period, Roberts cited the passage nearly a dozen times in briefs and appeals court opinions.

What’s the big deal with that one sentence, you ask? Well, it emphasizes a clear dislike for multi-factor tests, a dislike Roberts obviously shares. That’s because---and here goes---those tests are “difficult to apply, jettisoning predictability for the open-ended rough-and-tumble of factors.”

There’s your passage. And then, last week in Medellin v. Texas, there it was again.

Roberts cited it to support his approach to interpreting a treaty by focusing on its language—and to criticize what he saw as Justice Breyer’s more unpredictable approach in the case.

Roberts wrote: “As against this time-honored textual approach, the dissent proposes a multifactor, judgment-by-judgment analysis that would ‘jettiso(n) relative predictability for the open-ended rough-and-tumble of factors.’” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995).

To Roberts, the passage—written 13 years ago by Justice Souter--stands for clarity and the need for clear and precise rules.

But this time, Souter didn’t mind the “multifactor, judgment-by-judgment analysis.” Souter joined Breyer’s dissent—allowing Roberts, now a colleague and Chief, to use his own words against him.

March 31, 2008 | Permalink | User Comments (2)

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Posted by: neil | Mar 31, 2008 5:06:40 PM

Posted by: Marc | May 11, 2008 1:14:58 AM

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