End of a Honeymoon

James J. Kilpatrick

5/3/2006 11:05:17 AM - James J. Kilpatrick

Even the happiest honeymoon may sour in time. So it appeared last week as Chief Justice John Roberts stepped away from his role as Mr. Congeniality. He abandoned his conservative fans and led the court's liberal bloc into a swamp of gooey generosity. We shall pray unceasingly for his recovery.

The case that broke the truce, Jones v. Flowers, was remarkably uninteresting, but it provides an opportunity for mid-term reflection on the justices and their literary style. The facts are a yawn: In 1967 Gary Jones bought a house in Little Rock, Ark. In 1993, for irrelevant reasons, Jones moved out, but he kept up his mortgage payments. By 1997 he had paid off the loan. Meanwhile, a mortgage company had routinely paid his property taxes. After 1997, for whatever reason, nobody paid the taxes.

Authorities in Arkansas tried to notify Jones of his delinquent obligation by sending a certified letter to the old address. No response. In 2002 the state publicly advertised the $80,000 property for sale. An alert investor bought it for $21,000. Jones woke up. He sued to get it back, alleging that the state should have tried harder to find him. He lost in the lower courts. Last week he won in the high court.

It wasn't much of a victory. Roberts was joined in the court's majority opinion by the four Usual Suspects (Stevens, Souter, Ginsburg and Breyer). On the other side, Justice Clarence Thomas wrote a sensible dissent. Justices Antonin Scalia and Anthony Kennedy joined him. The newest boy on the bloc, Samuel Alito, did not participate.

Speaking for the majority, the chief justice regrettably relied upon a kind of spearmint jurisprudence. His opinion was soft and his reasoning gummy, but the prose tasted, as they say, good. He conceded that by sending the certified letter and publicly advertising the sale, the state had made a "reasonable" effort to alert Jones. The state's procedure was supported by precedents as old as 1950 and as recent as 2002. But under the circumstances, Roberts mused, a merely "reasonable" effort was not enough. "Due process requires the government to do something more ..."

The chief justice offered a few suggestions for how this "something more" could have been accomplished. Then he firmly concluded: "Mr. Jones should have been more diligent with respect to his property, no question." People must pay their taxes, and government may seize the property of tax delinquents. But due process requires adequate notice of an impending taking, and the state's notice was not adequate.

Justice Thomas, writing for the dissenters, was not impressed. The state had relied upon procedures that "clearly satisfy the requirements of due process." Nothing in the Constitution requires the state to engage in heroic efforts at notification. The majority's suggestions for "something more," aside from being constitutionally unnecessary, "are also burdensome, impractical, and no more likely to effect notice than the methods actually employed by the state."

Getting away from the sweet-pea substance of Roberts' majority opinion in the Arkansas case, I'm ready to give the chief justice points for syntax. None of his four opinions for the court has suffered from serious turgidity. Mostly, they read well.

Roberts' maiden opinion as chief justice came on Dec. 9 in Martin v. Franklin Capital. The case was inescapably boring, but Roberts evidently knows how to be boring clearly.

His second opinion on Feb. 21 in Gonzales v. Uniao do Vegetal (UDV) was a heap better. Here the government proposed to punish members of a tiny religious sect in New Mexico for importing a potent herbal tea that is vital to their sacramental ceremony. Under Roberts' relentless reasoning the case collapsed.

In his third opinion, the new chief spoke for a unanimous court on March 1 in rebuking a few holier-than-thou universities that refuse to accord equal treatment to military recruiters on their campuses. The opinion was nothing fancy. It contained no phrases meant for Bartlett's Quotations, but it was as clear as bottled water and just as pleasant to drink.

For the past 20 years Justice Scalia has functioned as the court's only truly gifted writer. His colleagues over two decades have included a charming woman, a misguided pilot, three sociable gentlemen, and three jurists whose pens are filled with library paste. There hasn't been another consistently readable writer in the lot. Justice Alito? We'll see.