John Roberts dissents alone and doesn’t hold back

Chief Justice John Roberts, untethered from his usual position in the Supreme Court majority and dissenting alone on Monday, fired back with an arsenal of sarcasm, derision and his own alternative view of history.

“The Court sees no problem with turning judges into advice columnists,” Roberts wrote, as his eight colleagues decided that “nominal damages,” even $1, could prevent a case from becoming moot and keep it alive.

“For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice,” he wrote in one of many biting turns of phrase as he dissented.

For Roberts, who took his seat in 2005, it was the first time as lone dissenter in a dispute argued on the merits before the justices, according to SCOTUSblog, which analyzes data on the Supreme Court.

And it must have stung to be alone, a chief without his court, voicing concern that the majority had expanded the role of the judges, who the Constitution confines to cases and controversies where an injury can be shown and redress is available. The majority revived the free-speech claim of an evangelical Christian college student in Georgia even though he had graduated and was asking for only $1 in damages.

Roberts retorted with stinging rhetoric. Not only would federal judges hearing disputes over essentially symbolic damages be reduced to role of “advice columnist,” their proceedings would become mere “moot” courts, “deciding cases in the rarified atmosphere of a debating society.”

This was just one case in one court term — a term that has nearly four months to go, with the weightiest disputes yet to be decided — so people cannot read too much into Roberts’ dissent, unprecedented as it is.

With the addition last year of conservative Justice Amy Coney Barrett for the late liberal Justice Ruth Bader Ginsburg, Roberts is now overseeing a 6-3, conservative-liberal, bench on which he is no longer at the ideological center and positioned to wield as much control as in recent terms. Could Monday’s action, even in a decidedly non-ideological dispute, offer some tantalizing sign of Roberts’ future? Unlikely.

Although his persuasive skills failed in Monday’s case, this first-in-his-class, first-among-equals chief justice has a long record to suggest he is not headed for a new pattern of regular dissent.

Yet for one day, the case found Roberts shedding his usual elevated style as he referred to the “flimsiness” of the majority’s view and said, “The scope of our jurisdiction should not depend on whether the defendant decides to fork over a buck.”

The dispute began when a student at Georgia Gwinnett College was prevented from speaking out and distributing religious literature, under a campus policy that limited where students could speak out. Writing for the 8-1 majority, Justice Clarence Thomas reversed a US appellate court and revived the claim of Chike Uzuegbunam, although the campus speech policy had changed, Uzuegbunam had graduated, and he was asking for $1 in damages.

Thomas noted that a plaintiff who wants to establish “Article III standing,” tied to the constitutional provision for federal court jurisdiction, must seek a remedy that would redress the harm claimed. Thomas said that the English common law tradition, on which US law is based, allowed people to recover nominal damages to vindicate their legal rights.

“By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury,” Thomas wrote, “the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.” He added that a request for nominal damages would not guarantee a person’s claim goes forward. The individual still must show a particular injury covered by law. “For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him.”

Reading history in a different light, Roberts insisted. “Any lessons that we learn from the common law, however, must be tempered by differences in constitutional design. The structure and function of 18th century English courts were in many respects irreconcilable with the role assigned to the judiciary in a tripartite allocation of power,” Roberts wrote, referring to the US separation of powers.

Roberts, a one-time history major who remains a serious student of British history, offered competing references for his view that it was far from clear common law courts would have provided nominal damages in a case such as Monday’s.

But the chief was alone in that interpretation, as well as in concern that federal court judges would suddenly face expanded jurisdiction and responsibility. “Because I would place a higher value on Article III,” he declared, with the longstanding court convention of “respect” for colleagues on the other side, “I respectfully dissent.”

Roberts saw one possible way to minimize the effect of the majority view. “The best that can be said for the Court’s sweeping exception to the case-or-controversy requirement is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff’s claims.”

Concluded Roberts, “Perhaps defendants will wise up and moot such claims by paying a dollar, but it is difficult to see that outcome as a victory for Article III. Rather than encourage litigants to fight over farthings, I would affirm the judgment of the Court of Appeals.”