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Dissecting the Decisions 

Vermont's newest justice shows his colors

Chief Justice John Roberts gave a rare interview in this month's Atlantic Monthly in which he discusses his views of the Court. Roberts claims that people will lose faith in the rule of law if they believe that judges simply impose their personal politics. For the United States Supreme Court to maintain its legitimacy, he argues, the justices must act less like prima donnas and more like colleagues willing to compromise in order to reach unanimous opinions.

This sounds a lot like the bipartisanship rhetoric echoing throughout the nation these days. It remains to be seen whether Roberts will be able to rein in the Court's divas. Last term, 54 percent of the decisions were unanimous - a higher percentage than in years past. Yet, there were plenty of split decisions, as well, among them Randall v. Sorrell, the case that struck down Vermont's campaign finance law. The Court issued six separate opinions, leaving our legislature and America wondering just how states can regulate contributions without running afoul of the First Amendment.

Time will tell whether Roberts, so fond of baseball analogies, can get his bench to play more like a team. Given this term's controversial cases involving abortion, affirmative action and global warming, no one's yet betting on the Chief to deliver.

Nevertheless, Roberts is right about the desirability of unanimous decisions. Perhaps no one understood this better in modern times than Chief Justice Earl Warren. Brown v. Board of Education was Warren's first case on the bench. It had been initially argued when Fred Vinson was Chief Justice. At the time, the justices couldn't agree; many believe that a slim majority of the Court would have upheld racial segregation. Vinson then died unexpectedly, forcing President Harry Truman to make good on his promise to appoint Warren to the first vacant seat. Warren was able to bring the Court to the unanimous decision that "separate but equal" had no place in American education.

Under Warren, every subsequent case involving school desegregation was unanimous, leaving no doubt about where the Court stood, as a singular entity, on the question of racial equality. This kind of clarity gives the public confidence that courts stand for something greater than the politics of the day.

What Roberts really wants is a court more like the Vermont Supreme Court, which has been among the most unanimous in the nation. Of the 77 opinions issued in the 2005-2006 term, there were only three dissenting opinions, meaning that the justices agreed 96 percent of the time. In the previous term, 83 percent of the Court's cases were unanimous, and the year before that, 91 percent. Vermont's advantage is size. With only five justices rather than nine, there are simply fewer people to dissent.

The lack of controversy on the Vermont Supreme Court may be one reason why Vermonters don't follow it as intensely as many of us follow the nation's highest court. Unless a case is high profile, our Court rarely makes the news. Last year, more Vermonters publicly weighed in on the confirmation of Samuel Alito than we did on Brian Burgess. In fact, it's likely the average Vermonter can name more justices on the United States Supreme Court than on our own.

Roberts would probably argue that the lack of intense scrutiny shows the public trusts the Court to function as it should. What's particularly noteworthy about Vermont is that in each of the last three terms, no single justice issued more than three dissenting opinions. This suggests there are no prima donnas among our justices. For Roberts, ideological clashes among the justices make the United States Supreme Court less stable, albeit more interesting, than our own.

However, there's some indication that Vermont's court is becoming less cohesive. In September 2005, when Jim Douglas appointed Brian Burgess to the bench, the governor had not publicly discussed judicial nominations much. He noted only that he would seek a nominee who would exercise "judicial restraint." Burgess had served as a trial judge as well as an assistant attorney general. Well known and highly regarded by the bench and bar alike, Burgess was considered by many an excellent choice. Along with Douglas' first appointee, Chief Justice Paul Reiber, Burgess joined Howard Dean appointee Marilyn Skoglund, and Madeleine Kunin appointees John Dooley and Denise Johnson. In their first year on the bench together, these five agreed on nearly every case.

Yet, since September 2006, just halfway through the current term, Justice Burgess has already written five dissenting opinions, breaking recent records for most dissents within a single year. Furthermore, his decisions have a stronger conservative tone than might have been expected. It's hard to predict if this is evidence of an emerging trend. But the development is worth noting.

Burgess' most recent dissent was in Dept. of Corrections v. Human Rights Commission. The case involved a state inmate with a developmental disability that made it difficult for him to follow directions. He became the target of disciplinary action and then of other inmates, and was eventually placed in segregation for 17 months. His mother complained to the Human Rights Commission, which found that the prisoner was being discriminated against, in violation of Vermont's Fair Housing and Public Accommodations Act. Three members of the Court agreed that prisons were covered under the law.

In his dissent, joined by Reiber, Burgess wrote, "We might frequently perceive an arguably better policy of reason to extend legislation beyond what is actually declared by the statute. It is not the function of this Court, however, to correct or change a statute that can otherwise effectively achieve a purpose plainly and unambiguously written by the legislature."

This is pretty strong language coming from the most junior member of the Court, and it suggests that Burgess may well be a "strict constructionist." Rather than interpret the law with its underlying purpose in mind, Burgess argues that the role of the court is to narrowly construe the law, even if it frustrates greater concerns of justice and fairness. This is, arguably, the type of "judicial restraint" for which Douglas was hoping.

Burgess employed the same strict constructionist approach in his other dissents. For example, in State v. Jackowski, Rose Marie Jackowski, 69, was convicted of blocking traffic for 15 minutes during an antiwar protest in Bennington. At the trial, there was disagreement about whether her intent was to protest the war or to annoy the public. The majority reversed the conviction and sent the case back for a new trial. This time, Burgess, joined by Justice Dooley, said Jackowski was guilty no matter the legal distinctions.

In a third case, Burgess, joined by Reiber, would have barred a would-be plaintiff whose brother had been murdered from suing those responsible for his own loss of companionship. In a fourth, Burgess, again joined by Reiber, would have allowed tenants to be evicted even though the Department of Labor and Industry didn't take action against the owner for violating the housing code. In a fifth, Burgess alone would have limited attorney's fees in worker-compensation cases, making it more difficult for those injured on the job to find lawyers to represent them.

None of these cases mean much on their own, but they reveal a general pattern that's hard to ignore: In Burgess' dissents, the underdog always loses. Coincidence? Perhaps. But the danger that Roberts warns about is real. If the public perceives any judge as wed to an agenda, be it liberal or conservative, then the Court appears to be in the throes of politics.

It's indeed critical for justices to voice contrary opinions during deliberations. But when the votes aren't there to win, every justice must decide whether to compromise with his or her colleagues, or dissent on principle. It's not that one should never dissent. But for the good of the rule of law - and the legitimacy of the Court itself - justices should choose their battles wisely.

Cheryl Hanna is a professor of Constitutional Law at Vermont Law School. Shannon Vallance assisted in the research for this column.

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