John Roberts shows why judges shouldn't punctuate from the bench.

Monday, July 10, 2006

John Sparrow: As Mexico's disputed election heads toward constitutional crisis, nobody's asking the big question: How will the U.S. Supreme Court decide this one?

So far, the most striking aspect of John Roberts' performance as chief justice is that we still have another quarter century or two to mull it over. At 51, he's a boy king who has yet to show whether he's Prince Hal on his way to becoming Henry V or George W. on his way to being George W.

The early report cards on the Roberts Court are all over the lot. In the New York Times, Adam Cohen writes that this term, Roberts reserved his much-ballyhooed "judicial modesty" for cases when Democrats and criminal defendants wanted judicial action. Whenever conservative principles were on the line, Cohen says, Roberts became "a raging judicial activist."

Here in Slate, Rodger Citron credits Roberts for honoring his pledge to be a process-oriented minimalist by reducing dissent and by resolving more cases without deciding them. Give Roberts time, and perhaps eventually he can persuade the entire court to agree to decide nothing.

Back at the Times, longtime court reporter Linda Greenhouse cites legal praise for Roberts' real passion, which is not modesty but punctuation. As proof, Yale professor Akhil Amar points to one line from a recent Roberts opinion: "The state did—nothing." Amar tells Greenhouse, "That little dash is brilliant."

Happily, I don't read Supreme Court opinions for a living, so I'm in no position to judge whether that little sentence is above average. But the next 30 years could be a long slog if the measure of judicial success is doing nothing, and the measure of judicial literary brilliance is a pause for effect that means—nothing.

Dash of Brilliance?: To check on the boy king's progress, I decided to read his opinion in the case of the brilliant dash.

The only explanation for how this matter ended up on the court docket is that conservative clerks couldn't resist taking up an inconsequential Arkansas case named Jones v. Flowers. The case involves an Arkansas man named Jones who failed to pay property tax for several years on a Little Rock house that he no longer lived in because he'd left his wife. The state twice sent him notice by certified mail that his house would be sold to pay back taxes, but no one was home to sign for the letters, and no one showed up at the Post Office to claim them. The state then sold the house to a woman named Flowers, and Jones sued, claiming he hadn't received sufficient notice. The Arkansas Supreme Court ruled for Flowers, citing a U.S. Supreme Court precedent that actual notice is not required so long as the state makes a reasonable effort.

In a rare break with his conservative allies on the court, Roberts joined a 5-3 majority in asserting that Jones deserved "a bit more" notice. The "new wrinkle" in this case, he writes, is that because Arkansas used certified mail, the state knew its notice never reached Jones.