1. 800. 973.1177
COURT REPORTER
Slow Days At The High Court [James 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,
Roberts may have been turned off by the
balances between freedom of religion under
understandably drew no attention at all. It
government’s perfervid rhetoric. Gonzales
the First Amendment and public safety under
is the court’s venerable custom to give a
argued that the lower court’s “extraordinary”
the Controlled Substances Act. Makes sense
newcomer a real dog, and Martin v. Franklin
opinion threatens to inflict “irreparable
to me. His was a good opinion, but not a
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.
harm” on international cooperation
great one.
supervision.”
only two numbered footnotes. The first was
Last week’s 8-0 opinion in Gonzales v.
To all of which the chief justice said, in effect,
surplusage.
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.
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
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 informative; the second was self-evident
pooh! The government’s argument “cannot carry the day.”
A word of praise is also in order for Justices Stephen Breyer, Anthony Kennedy and David
For the past 35 years, Roberts observed,
Souter. Through last week, they had not
federal law has exempted the sacramental
indulged themselves in a single numbered
use of peyote by Indian tribes in the American
footnote. By contrast, Justice John Paul
Southwest. Everything the government
Stevens spattered 16 foots across his opinion
says about the hallucinogenic properties
in a bankruptcy case in January. Some of
of hoasca “applies in equal measure to the
them were downright chatty: No 4 helpfully
mescaline in peyote.” The attorney general
reported that “imprisonment for debt was not
had argued that thousands of Indians
abolished in England until 1869.” No. 6 let us
enjoy a favored status not accorded to 130
know that “at the time of the Revolution, only
followers of Uniao Do Vegetal in Santa Fe,
three of the 13 colonies had laws discharging
but Roberts was not much impressed: The
insolvents of their debts.”
well-established exception for peyote “fatally undermines” the government’s position on
The court’s term will end in June. For today,
the Brazilian tea leaves.
we stand adjourned.
the case in November 2004. The 13 judges
Indeed, said the chief justice, “the
(Letters to Mr. Kilpatrick should be sent by
split like a rack of pool balls. Finally a
government’s argument echoes the classic
e-mail to kilpatjj@aol.com.)
majority agreed, in a 153-page opinion,
rejoinder of bureaucrats throughout history:
that the ritual is “legitimate religious
If I make an exception for you, I’ll have to
expression.” The effect was to thwart the
make one for everyone, so no exceptions.”
SYNDICATE
Bending a little, Roberts acknowledged that
This feature may not be reproduced or
interpretation of the Religious Freedom
distributed electronically, in print or otherwise
Restoration Act is not an easy task. It
without the written permission of uclick and
requires the courts to strike sensible
Universal Press Syndicate.
The 10th Circuit, based in Denver, ruled on
government’s effort to stop the petitioners from observing the Brazilian rite. Attorney General Alberto Gonzales appealed. Last week he was foiled again.
PAGE
COPYRIGHT 2005 UNIVERSAL PRESS