Chief Justice Roberts, Civil Litigator at Heart

By Steve Klepper (Twitter: @MDAppeal)

Across the political spectrum of legal blogs, the Supreme Court’s decision in Kaley v. United States has drawn strong criticism, and Chief Justice Roberts’ dissent has drawn strong praise. A sampling of the commentaries appear at the end of this post.

Writing for the 6-to-3 majority, Justice Kagan summarized the Court’s holding as follows:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.

Chief Justice Roberts, joined by Justices Breyer and Sotomayor, responded:

The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial .…

Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to takeaway a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.

The unusual vote alignment in Kaley raised eyebrows. Some votes did surprise me, but not Chief Justice Roberts’. While my predictions are frequently wrong, Kaley represents a rare instance where I predicted something correctly. Early in the morning on October 16, 2013, the day of argument, I Tweeted: “Bold prediction: Roberts votes for pet’r in Kaley – issue where attys w/ private civil practice background say ‘Wait, what?’ Cf. Yeager v US.”

Let me translate from Twitter-speak. Of the nine sitting Justices, only the Chief Justice made his name as a private civil litigator. A majority of the Court – Justices Thomas, Ginsburg, Breyer, Alito, and Kagan – spent no time in private practice. (I’m not counting Justice Ginsburg’s public-interest litigation as ACLU General Counsel.)  By all accounts, Justice Scalia could have made partner at Jones Day, but he left for academia after six years as an associate. Justice Sotomayor spent just under a decade in private practice – she made partner, but she didn’t enjoy private practice. Justice Kennedy spent 12 years as a solo practitioner before joining the Ninth Circuit.

Make no mistake, though. When the ABA and the Senate Judiciary Committee considered the qualifications of Justices Kennedy and Sotomayor to sit on the Supreme Court, their service as federal judges was the primary focus. Each had been a sitting federal judge for at least 13 years.

But for Chief Justice Roberts, the spotlight was on his time in private practice, not his brief time on the D.C. Circuit. And Chief Justice Roberts wasn’t just any litigator. He was nationally recognized as one of the top private practitioners before the Supreme Court.

Experience as a civil litigator is not superior to experience as a District Judge, Circuit Judge, prosecutor, government lawyer, government administrator, law professor, or public-interest litigator. Each brings a different and valuable perspective. But to me the Kaley dissent demonstrates the value of having a few Justices with private-practice background.

For civil litigators, the differences between civil and criminal procedure often are eye-opening. The contrast between the scope of discovery under Criminal Rule 16 and Civil Rule 26, for example, is particularly stark.

After spending my first six years in exclusively private practice, I’ve worked on 10 criminal and habeas appeals since 2007. In one of those cases, the D.C. Circuit stayed an ongoing trial based on the intervening authority in Yeager v. United States, 129 S. Ct. 2360 (2009). Yeager expanded the availability of collateral estoppel (issue preclusion) in criminal cases. The Chief Justice didn’t write the majority decision, but he did join Justice Stevens’ opinion for the Court. That vote surprised me at first. But then I read a footnote that the justification for applying the civil doctrine of collateral estoppel in criminal cases “was first offered by Justice Holmes, who observed that ‘[i]t cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.’ United States v. Oppenheimer, 242 U.S. 85, 87 … (1916).”

Justice Scalia’s dissent in Yeager noted the historic differences between civil and criminal law: “As described by Sir Matthew Hale, ‘a man acquitted for stealing [a] horse’ could be later ‘arraigned and convict[ed] for stealing the saddle, tho both were done at the same time.’” That dissent did not move Chief Justice Roberts, and I strongly suspect that his years in private practice influenced his Yeager vote.

The opinions in Kaley do not mention the contrast between civil and criminal law, but I have little doubt that Chief Justice Roberts’ background as a civil litigator informed his dissent in Kaley, consciously or unconsciously. It is unimaginable that a civil plaintiff could freeze the assets that a defendant wished to use to pay for his or her attorney of choice, particularly without giving the defendant a chance to challenge the freeze order. Of course, a criminal defendant, unlike a civil defendant, has the right to a government-funded attorney if he is unable to pay for a private attorney. Even with that added protection, however, the Kaley majority’s opinion did not sit right with Chief Justice Roberts.

Incongruity between civil and criminal procedure does not, of course, necessarily mean that a criminal procedure is unconstitutional. Criminal defendants enjoy protections that civil defendants do not—particularly the right to counsel, the beyond-reasonable-doubt burden, and the prosecution’s inability to appeal a jury verdict of acquittal. In Kaley, Justice Kagan was careful to point out that Congress could amend the statute to give a defendant an opportunity to contest the freeze order. Chief Justice Roberts thought such a statutory reform unlikely, but we do live in a time when, for instance, true bipartisan sentencing reform appears possible.

As others have pointed out (see links below), the result in Kaley depended largely on how the question was framed. Justice Kagan, the former law professor, framed Kaley as a Fifth Amendment question of the historic function of the grand jury. Chief Justice Roberts framed Kaley as a Sixth Amendment question of the right to choose one’s own counsel at the hour of greatest need. Whether you agree with Justice Kagan or the Chief Justice, the dueling opinions illustrate the different backgrounds of two first-class legal minds.

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