The Chief was at it again.
Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.
None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.
No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.
But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.
While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.
At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.
Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.
Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.
Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.
And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.
Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.
Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”
Frankly, we like it Roberts’ way better.
And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.