Slow Days at the High Court

Posted: Mar 02, 2006 4:24 PM

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."

For the past 35 years, Roberts observed, federal law has exempted the sacramental use of peyote by Indian tribes in the American Southwest. Everything the government says about the hallucinogenic properties of hoasca "applies in equal measure to the mescaline in peyote." The attorney general had argued that thousands of Indians enjoy a favored status not accorded to 130 followers of Uniao Do Vegetal in Santa Fe, but Roberts was not much impressed: The well-established exception for peyote "fatally undermines" the government's position on the Brazilian tea leaves.

Indeed, said the chief justice, "the government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everyone, so no exceptions."

Bending a little, Roberts acknowledged that interpretation of the Religious Freedom Restoration Act is not an easy task. It requires the courts to strike sensible balances between freedom of religion under the First Amendment and public safety under the Controlled Substances Act. Makes sense to me. His was a good opinion, but not a great one.

I digress long enough to compliment the new chief justice on his evident aversion to footnotes. In his maiden opinion in the Martin case, involving the award of attorney's fees, he inserted only a kind of editor's note. In his second opinion last week he allowed himself only two numbered footnotes. The first was informative; the second was self-evident surplusage.

A word of praise is also in order for Justices Stephen Breyer, Anthony Kennedy and David Souter. Through last week, they had not indulged themselves in a single numbered footnote. By contrast, Justice John Paul Stevens spattered 16 foots across his opinion in a bankruptcy case in January. Some of them were downright chatty: No 4 helpfully reported that "imprisonment for debt was not abolished in England until 1869." No. 6 let us know that "at the time of the Revolution, only three of the 13 colonies had laws discharging insolvents of their debts."

The court's term will end in June. For today, we stand adjourned.