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Thursday, July 21, 2005

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.

Posted by berniemeyler on July 21, 2005 at 11:57 AM in Law and Politics | Permalink


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Tracked on Jul 22, 2005 2:07:48 PM


By the way, I disagree with Mike, in that personally, I rather like Justice Scalia's willingness to call out his fellow Justices on their more outrageous absurdities and inconsistencies; I find him both witty and incisive (not to mention, fundamentally correct most of the time) as a writer and speaker, and his prose very refreshing. Of course, I'm also a tantrum-prone three year old, so maybe it's just kindred affinity.

Posted by: Simon | Jul 22, 2005 2:34:22 PM

I agree entirely with MJ's last comment as it pertains to the french fry case, but I dissent on the affirmative action comparison. Affirmative action is deeply wrong, fundamentally and necessarily counterproductive, and utterly unconstitutional. And I don't care whether the Supreme Court has ruled it constitutional or not - for now, in practical terms, it is legally accepted, but it should be challenged in courts again and again - as Kelo should be, as Roe should be - until the Court reaches the conclusion which accords with the Constitution. I don't buy the argument that every time the court gets something wrong, we need to amend the constitution to say something the existing document already makes clear.

Posted by: Simon | Jul 22, 2005 2:27:19 PM

The point is that there was no legal wrong here, not that there has been a wrong without a remedy. The city enacted a policy that is empowered to enact under our constitution. It enforced a lawful policy.

It's just like an affirmative action program. There are people who deeply believe that such programs are wrong. However, a university is constitutionally permitted to enact them. If a person is denied entry to a school that they are qualified to get into, while others with lesser academic acheivements are admitted based on the schools policy of reaching a critical mass of certain minorities, they may feel gravely wronged. Many feel that such programs do violate the 14th Amendment. But that is not what the Supreme Court has said on the matter, and so the program is permissible and the school is allowed to implement it - it's not that they are doing anything with impunity, it's that there is no conduct to be legally impuned.

So it's not that the government may "wrong its citizens without a remedy" it's that there has been no "wrong" in the first place. You can't remove this from the context of legal injury. Without one, a court has no authority to mend out any compensation.

Posted by: MJ | Jul 22, 2005 8:55:31 AM

I know I'm going to get more hysterical accusations of hating america from even suggesting this, but what the hey, I obviously like punishment...

It is possible to be wronged in ways for which the law offers no remedy.

Ought there be?

Now, I'm, not talking doctrine here: I know that the quoted statement is correct as a matter of law, thank you very much. And I'm also not talking about between individuals: I have no intention of suing people for stepping on my feet. I also don't hate America, the Constitution, Police, the District of Columbia, the God of French Fries, Motherhood, Apple Pie, Jesus, Buddha, Kali, the Sun Goddess, Ishtar, Zeus, Odin, Truth, Justice, Freedom, Love, Peace, Democracy, The People, or our Soldiers. Nor do I support Osama. Now, with those apparently necessary disclaimers out of the way:

Why should the government be able to wrong its citizens without a remedy? Isn't the government in a special, responsible, relationship to each of its citizens? Doesn't it have a duty to not do injustice to its citizens?

Posted by: Paul Gowder | Jul 22, 2005 8:24:35 AM

If Judge Roberts had said nothing sympathetic about the victim, the left would be painting him as a calloused, heartless, conservative. The fact that he expresses sympathy BEFORE APPLYING THE LAW, which, I'm told, is a fairly important aspect of a judge's job, is then viewed as a tactic to distract from the fact that he is, in fact, a calloused, heartless, conservative.

As per usual, when the choices are: Heads, he's heartless, Tails, he's pretending not to be heartless - but he really is, the left will find a way to reach the conclusion that they were looking for in the first place: We can all agree that Judge Roberts is probably heartless.

And by the way, the court did not conclude that public shaming of DC was the proper remedy "rather than the judicial determination of constitutionality or lack thereof" - the court MADE a judicial determination of the constitutionality of the plaintiff's claims, just not the one that the folks who didn't like Atwater and think every indignity is a violation of the Constitution, wanted to hear.

Posted by: MJ | Jul 22, 2005 8:16:13 AM

Roberts' rhetoric aims to make a distinction between legal wrongs and plain 'ole wrongs. The relentless legalization of all aspects of life has erased in many people's minds this important distinction. Mike has it exactly right. It is possible to be wronged in ways for which the law offers no remedy. Roberts is pre-emptively defending himself against charges of callousness coming from those who find the notion of non-legally-redressable wrong outre

Posted by: Ben_H | Jul 22, 2005 7:29:45 AM

I think all of this srtingly suggests that Roberts is a Frankurterian judicial restraint judge. He is divorcing his view of policy from his view of law. And that's a good thing -- especially if you are a liberal.

Posted by: lawprof | Jul 21, 2005 4:57:07 PM

Is there a point to seeking to discover judicial philosophy from the rhetorical particulars of two cases?

I understand that it might be comforting if we had a little more paper with which to assess the man. But oh my...drawing out ominous "tendencies" from a severely limited selection of writing seems a bit...tendentious.

Posted by: Marc O. DeGirolami | Jul 21, 2005 4:48:22 PM

That's the one. I don't see it on SSRN. Guess the Kentucky Law Review doesn't want anyone without Lexis or Westlaw reading their articles. Kudos to them for their contribution to the market of ideas.

Posted by: Mike | Jul 21, 2005 4:20:01 PM

Michael A. Frost, "Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case," 91 KENTUCKY LAW JOURNAL 167 (2002-2003). ??

Posted by: Paul Gowder | Jul 21, 2005 3:54:40 PM

I just saw this read: "While not approaching the florid prose of Justice Scalia ..." What? Scalia reads like a 3-year-old's temper tantrums. Instead of clearly demonstrating why the other Justices are, he tells them how stupid and irrational they are. That's not good rhetoric; that's not florid prose.

There's even an intersting article (can't find the cite) applying rhetorical principles to Scalia's writings. The author (who himself could learn from the great rhetoricians) demonstrates why Cicero or Aristotle would have expelled Scalia from their schools.

Posted by: Mike | Jul 21, 2005 3:42:09 PM

One thing to add. Many people whose civil rights have been violated just want someone else to agree with them. It's not always (or even usually) about the money, or about a legal remedy. Cities NEVER apologize. I've seen several cases where an apology would have ended the case before it was filed. So the person harmed seeks to tell his story to a judge or jury. They have a deep human need to be heard, to be validated.

It's impossible to overstate the importance of Judge Roberts' MTA opening. He validated the plaintiff's suffering. "Yes, you were wronged. I am sorry. But there is nothing we can do." That's very important, and that's why I look forward to reading Justice Roberts' opinions (even the ones with outcomes I won't like).

Posted by: Mike | Jul 21, 2005 3:37:01 PM

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