View From a Height

Adopt a Box of Docs

Here's my contribution to the Adopt a Box of Doc Project. I was lucky. Not only did my box contain stuff actually written by Roberts, but the stuff itself is pretty illuminating. Hopefully the Washington Post will find it helpful.

On February 6, 1983, Chief Justice Warren Burger used his State of the Judiciary address in New Orleans to discuss the Court's belief that it was overworked, and to float two proposals. Four days later, John Roberts wrote a two-pager which leads one to believe (although Roberts never even hints) that maybe the Chief had been down in the French Quarter a little too late the night before:

I suspect that there has been enough study of judicial problems and possible remedies, but certainly would not want to oppose a modest proposal for more study emanating from Chief Justice.

One of the beauties of Roberts's writing is that it requires virtually no interpretation, aside from what is now historical context. You have no idea how old typing that last sentence makes me feel.

The more significant afflatus from the Chief Justice is his proposal for immediate creation of a temporary court between the Courts of Appeals and the Supreme Court, to decide cases involving inter-circuit conflicts referred to it by the Supreme Court.

I had to go to by OED for "afflatus." It wasn't there. It did track it down in another dictionary, and it means 1) wind or breeze, and 2) inspiration. 2) is not altogether unrelated to 1), but there's just about no way this is complementary. You can almost see Roberts's eyes rolling and hear him sighing. "The Old Man has given air to another one of his brainstorms, and we're going to have to talk him down from it."

Roberts points out a few problems with the idea. First, the certiori process now becomes three-headed and thus more complicated, not less. Secondly, the National Court of Appeals, itself subject to review, risks becoming just another voice in the cacophany of conflicting opinions. Third, it may encourage more filings for appeal. Fourth, it may further depress morale on the Appellate bench. Fifth, having the Chief Justice appoint the members seems to violate traditional executive prerogatives.

He saves the best for last, and it provides some key insights into how the young Mr. Roberts saw a Court run amok and awry:

My own view is that the creation of a new tier of judicial review is a terrible idea. The Supreme Court to a large extent (and, if mandatory jurisdiction is abolished, as proposed by the Chief and the Administration, completely) controls its own workload, in terms of arguments and opinions. The fault lies with the Justices themselves, who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented. If the Justices truly think they are overworked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the "good faith" standard, and abdicating the role of fouth or fifth guesser in death penalty cases, would eliminate about a half-dozen argued cases from the Court's docket each term.

So long as the Court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked. A new court will not solve this problem.

This reads so much like a blog posting itself that virtually no comment is necessary. It is neither judicially restraining nor activist, it just states that the Court is completely out of control. For those of you wishing to follow up on the Exclusionary Rule, SCSU Scholars and Joe Carter are working that box. Roberts's concern about muddy thinking and muddy writing is now very evident in the Court's handling of church-state questions, exemplified by the reasoning in the Texas and Kentucky cases of the very woman he's been nominated to succeed. One might also refer to the various and varied opinions in Bush v. Gore.

Box #2 is a memo to Roberts, dated 2/9/83, with prior testimony and study by the Administration that apparently informed his own two-pager. Interestingly, the second-to-last item is a January 1977 (pre-Carter) report by a special committee chaired by Robert Bork, but which also included Antonin Scalia, Bruce Fein, and Richard Thornburgh before he lost his critical faculties.

It's worth noting, though, that Roberts's opinion of the Chief's afflatus was not universally shared within the Administration. Treasury didn't seem to have any problem with it,for instance, and the DOJ came out with a report approving of the idea.

The second half of Box #2, and Box #3 were related to removing mandatory jurisdiction from the Court in certain cases. Except for a perfuctory note, there's nothing in Roberts's own writing from those boxes.