Roberts' Rhetoric

While not approaching the florid prose of Justice Scalia, Judge Roberts’ opinions have some interesting rhetorical characteristics—amounting to what I might call the judicial version of “compassionate conservatism.” The two cases that have provided a focal point for commentary, Hedgepath v. Washington Metropolitan Area Transit Authority and Rancho Viejo v. Norton, exemplify this style, which consists in expressing demonstrative sympathy for the unfortunate “victim” of official action, while at the same time proclaiming that no legal remedy exists.

The first paragraph of Judge Roberts’ opinion in Hedgepath began by explaining the disturbing circumstances leading to the arrest of a twelve-year-old girl “for eating a single French fry in a Metrorail station.” It concluded, however, that, regardless of whether the policies leading to this event “were a bad idea,” they did not violate the Fourth and Fifth Amendments.  Some compensation for the adverse verdict, the paragraph implies, was provided by the public embarrassment that the incident cast upon those responsible:

The district court described the policies that led to her arrest as ‘foolish,’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.

According to the rhetoric of the opinion, the public arena of dignity and shame—rather than the judicial determination of constitutionality or lack thereof—was the appropriate arena for determining the merits or lack thereof of the officials’ actions.

Likewise, in Rancho Viejo,

Judge Roberts’ dissent from the denial of a rehearing en banc explained that “The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce . . . among the several States.’” Although an entertaining way of phrasing the point, the sentence carries the disturbing suggestion that even a toad could be considered a possessive individual, capable of making autonomous decisions for its own private purposes. Despite being “hapless,” the toad, for Judge Roberts, should remain protected only by its own savoir faire.

This is not, however, the main drawback of the dissent’s rhetoric. The focus upon the “hapless toad” distracts the reader from focusing upon the central federalism question raised by the case, and the issue of how far Congress’s power under the Commerce Clause extends. By invoking the toad, Judge Roberts called to mind the mind the inconveniences caused by protection of the snail darter at the expense of a dam in Tennessee Valley Authority v. Hill, and cast into the background the importance of dealing with environmental problems at a national level.

This tendency to provide rhetorical sympathy for those whom he concludes the law does not support might occasion some skepticism about whether Judge Roberts will really be a moderate replacement for Justice O’Connor. While Judge Roberts’ gentle demeanor may make him an excellent television personality, we should remember that Supreme Court oral arguments are still not open to filming, and it is in print and precedent rather than in person that most of us are most likely to encounter him as a Justice.