Deja Vu for Chief Justice Roberts

In his forceful dissent Monday in the Caperton v. Massey Coal Co. case, Chief Justice John Roberts Jr. warned that when the Court lays down a rule that applies to a seemingly rare case, it can sometimes spawn a lot of litigation by parties who think their case is just as exceptional. Roberts offered an example: United States v. Halper, a 1989 decision governing what appeared to be an unusual scenario that nonetheless resulted in a flood of double jeopardy claims by criminal defendants. Eight years later in Hudson v. United States, the Court disavowed the rule it established in Halper as "ill-advised."

What Roberts did not point out in Monday's dissent was that he had argued and won the Halper case that created the "ill-advised rule." It was Roberts' first oral argument before the high court, assigned to him by his mentor Chief Justice William Rehnquist. Roberts worked at Hogan & Hartson at the time, and defendant Irwin Halper needed a lawyer to represent him at the Supreme Court. Halper had argued pro se in the lower courts -- something the Court does not allow for non-lawyers appearing before it.

Halper had been convicted on Medicare fraud criminal charges and fined $5,000. Then the government sued him civilly under the False Claims Act and could have recovered $130,000. But Halper claimed that because the civil fine bore no relation to the amount of fraud he had committed, it amounted to a second punishment that violated the Double Jeopardy clause. The high court, calling it a "rare case," agreed. In the subsequent Hudson case, the Court said the standard established in Halper had proven unworkable. "We thus abandoned our Halper rule," Roberts wrote Monday, using the customary editorial "we" referring to the court at the time, though in this case it had special meaning.

"The deja vu is enough to make one swoon," Roberts said in his Caperton dissent on Monday. In Caperton, the majority ruling by Justice Anthony Kennedy stressed that the scenario in the case -- a giant campaign contribution to elect a judicial candidate to a court seat at the exact time that the donor's legal appeal was heading to that court -- was so extreme and rare, that the constitutional rule requiring recusal in such a case would rarely be invoked in the future.

"I believe we will come to regret this decision as well," Roberts said, "when courts are forced to deal with a wide variety of Caperton motions, each claiming the title of 'most extreme' or 'most disproportionate.'"

Comments

[Glen]

The lack of ethics shown by Roberts, Scalia, Alito and Thomas in allowing what is in reality an attempt to buy justice is appalling. Five judges made the right call. The other justices greatly erode American's confidence in courts with a position as indefensible as they took.