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The Wit and Wisdom of John Roberts.


John Roberts is still very much on the job, serving in his capacity as D.C. Circuit Court of Appeals Judge even this week, despite his momentous nomination to the Supreme Court.

In one decision, U.S. v. Tarry M. Jackson (.pdf), Roberts dissents from the majority, and offers a glimpse into his sense of the law-- as well as his sense of humor.

Some brief background on the case, first, as seen by the The New York Times:

The question in the case was whether two police officers had probable cause to search the trunk of a car after stopping its driver, Tarry M. Jackson, late at night for not having a functioning light on a license plate. Mr. Jackson could produce neither a driver's license nor the car's registration, and the officers determined that the license plates were stolen.

The officers found a loaded gun in the trunk. They later justified the search by saying they were looking for additional stolen license plates or evidence that the car itself might have been stolen. Mr. Jackson was sentenced to 21 months for unlawful possession of the gun.

The judges in the majority, Judith W. Rogers and Harry T. Edwards, said the reasons the officers gave for the search were unconvincing, and the judges faulted them for not investigating Mr. Jackson's contention that the car belonged to his girlfriend. Judge Rogers was appointed by President Bill Clinton, Judge Edwards by President Jimmy Carter.

Roberts, agreeing with the original findings of the district court, dissents (underlining mine):

Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action. Even if Jackson had provided contact information for his girlfriend in response to inquiries from the officers, and even if the officers had been able to reach the girlfriend and she were responsive to their questions, I cannot see any conceivable value in the over-the-phone testimony of a suspect’s apparent girlfriend — someone unknown to the officers, whose number was given to them by the suspect himself — that an unregistered car with stolen tags, driven by an unlicensed driver, was indeed hers and was being used with her permission.

Finally, my colleagues’ insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise....

In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.

I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. But sentiments do not decide cases; facts and the law do.

Assuredly, groups such as the American Civil Liberties Union (ACLU) will disagree strongly with Roberts' dissent. The concerns of civil libertarians are well-taken, although it does seem inappropriate for the majority in the case to second-guess the police in this instance, given the panoply of unequivocal reasons they had for probable cause.

But, facts of the case aside, the decision is interesting.

1. For the Souter-phobes, Roberts is in the minority against two liberals in the majority. This is just one of many pieces of evidence in the Judge's relatively limited record, indicating that he is no "stealth liberal."

Justice Souter, incidentally, had a 13-year record as a judge before his Supreme Court confirmation, but he still slipped through the cracks:


2. One can understand how Roberts has cultivated his reputation for being affable. He has a witty writing style that should prove interesting reading for Supreme Court junkies for years to come.

3. Roberts clearly errs on the side of not making new law, not mandating new regulations, and not playing the "shoulda, woulda, coulda" game. By all accounts, his judicial philosophy is anything but activist. He is stubbornly adherent to the facts and the law.

4. While this decision very well may have been written before the nomination, it is nothing short of impressive that, in the middle of the greatest whirlwind of attention and scrutiny of his entire life, Roberts could produce such a cogent opinion. With the Supreme Court aging as it is, Roberts' energy and vigor could prove to be an important infusion of productivity into upcoming sessions.

Posted by Will Franklin · 23 July 2005 07:00 PM


Thank you for your insightful information on Judge Roberts... Many of us on the Right, however, have grave concerns about his nomination, and some are holding of judgement. I heard something very troubling on Sean Hannity's radio show on Friday, when he was speaking with David Boies, one of the liberals who is supportive of Judge Roberts [there are more of those than many think]. I will be adding an update to my latest blog entry tonight, about this... Because of what I heard (combined with the doubts that had already been building up), I'm going to have to take a stance against Judge Roberts' nomination, for the time being.

Posted by: Aakash at July 24, 2005 06:07 PM

. .that is just absurd. Now you are against him because a liberal 'said nice things about him'? Get a life. .

Posted by: Ryan at July 24, 2005 10:00 PM

No... It has more to do with the content of Mr. Boies' remarks (with respect to Roe v. Wade), and with other factors - which have been written about by conservative commentators such as Ben Shapiro, Dustin Hawkins, and of course, Ann Coulter.

My concerns are similar to theirs. (As I indicated, I'm not finished updating that entry, but will be doing so, with some more relevant info.) Judge Roberts may end up being a constitutionalist judge, and he may end up voting to overturn Roe v. Wade, but as of now, it's too hard to say. And when it comes to U.S. Supreme Court justices, especially considering that they are allowed to serve for life, and considering how much unconstitutional power the Court has been able to usurp (from the legislative branch) over the years... Considering all that, we cannot afford to have more than a scintilla of doubt.

Posted by: Aakash at July 24, 2005 10:22 PM

It seems to me that aakash and others are committing the same injustice as the lefties in witholding their judgment of Roberts based upon what they fear is his POLITICAL (not judicial) philosophy. It is no more righteous for conservatives to oppose him because they fear he will not OVERTURN ROE, for instance, as it is for Barbara Boxer to oppose him for the opposite fear.

The only two appropriate inquiries (for conservatives) are (1) is he qualified, in terms of termperament and competence, and (2) does he have a conservative JUDICIAL philosophy.

I would suggest that, in the chart above, the term "judicial philosophy" may be confused with political philosophy. There is certainly enough in the 50,000 pages of material being reported to assure readers that he is a judicial conservative.

Posted by: wave maker at August 20, 2005 11:06 AM