James J. Kilpatrick

John Roberts delivered his second opinion last week as chief justice of the United States. It was more interesting than his first opinion, which scored 98.7 on a dullness meter in the press room. Things will pick up steadily from now to the end of term in June. A good thing, too.

The chief's maiden opinion, on Dec. 7, understandably drew no attention at all. It is the court's venerable custom to give a newcomer a real dog, and Martin v. Franklin Capital Corp. was woof-woof all the way. The case involved the determination of a proper standard for awarding attorney's fees when a case is remanded from federal court to a state court. That is all you need to know about the court's unanimous decision in Case No. 04-1140, except that Roberts managed to throw in a citation to U.S. v. Aaron Burr (1807), which provided a touch of class.

Last week's 8-0 opinion in Gonzales v. Uniao Do Vegetal, Case No. 04-1084, was more fascinating, but not by much. Roberts' 18-page effort set off some musings on appellate style and brought a commendable ending to a mildly interesting case.

The case involved a small religious sect in New Mexico. As part of their ritual, the 130 members twice a month sip a sacramental tea made from a Brazilian plant known as hoasca (pronounced "wass-cah"). Because the imported beverage produces mild hallucinations, the Justice Department sued to have it banned under the Controlled Substances Act.

The 10th Circuit, based in Denver, ruled on the case in November 2004. The 13 judges split like a rack of pool balls. Finally a majority agreed, in a 153-page opinion, that the ritual is "legitimate religious expression." The effect was to thwart the government's effort to stop the petitioners from observing the Brazilian rite. Attorney General Alberto Gonzales appealed. Last week he was foiled again.

Roberts may have been turned off by the government's perfervid rhetoric. Gonzales argued that the lower court's "extraordinary" opinion threatens to inflict "irreparable harm" on international cooperation in combating traffic in narcotics. The government, he warned, would be forced to violate an international treaty. To affirm the circuit court would "open the nation's borders to a mind-altering hallucinogen," a substance "so profoundly harmful that it is not even safe for use under medical supervision."

To all of which the chief justice said, in effect, pooh! The government's argument "cannot carry the day."

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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