John Roberts Accuses Fellow Supreme Court Justices Of ‘Turning Judges Into Advice Columnists’

BY NINA TOTENBERG

For the first time in his nearly 16 years on the Supreme Court, Chief Justice John Roberts has filed a solo dissent. In it, he bluntly accused his colleagues of a “radical expansion” of the court’s jurisdiction.

At issue was a case brought by two college students at Georgia Gwinnett College who were repeatedly blocked from making religious speeches and distributing religious literature on campus. They sued the college, claiming a violation of their First Amendment free speech rights.

The college soon caved, agreeing to abandon the challenged policies and pay the students’ legal fees. But when the students sought to continue their case, on the grounds that they had asked for nominal damages, the lower courts dismissed the case as moot.

The dismissal meant that while the students ultimately got everything they asked for, the case did not stand as a precedent; it was not a marker in the law that would hold other colleges similarly accountable.

Supreme Court Chief Justice John Roberts broke with his colleagues on the court, filing a solo dissent for the first time in his nearly 16 years on the bench.
CREDIT: Win McNamee/Getty Images

Now, however, the Supreme Court has ruled otherwise. In an 8-1 vote, it declared that because the students had also asked for nominal damages of $1, the case was not moot and they could go back to court seeking a formal judicial ruling in their favor.

“Nominal damages are not a consolation prize,” Justice Clarence Thomas wrote for the court majority. “Despite being small, nominal damages are certainly concrete. … a person who is awarded nominal damages receives ‘relief on the merits of his claim.’ ”

In his dissent, Roberts noted that there “are just a few problems” with the students’ desire to continue their lawsuit.

“The challenged restrictions no longer exist,” he said. “And [the students] have not alleged actual damages.”

The case, he added, is therefore moot because there is no live pending legal question.

If nominal damages, “no matter how trivial,” can preserve a case as live in the courts after all the significant issues have been disposed of — and when, as here, the award of that nominal amount “does not change [the students’] status or condition” — all that has changed is that the award “represents a judicial determination” that the students were right.

And that, Roberts said, would turn U.S. courts into something the founders specially rejected — a body rendering “advisory opinions.”

“The Court sees no problem with turning judges into advice columnists,” Roberts wrote.

Roberts rejected the basic premise of Thomas’ majority opinion, which rests in large part on 18th-century English common law. Roberts replied that English common law is “in many respects irreconcilable with ‘the role assigned to the judiciary’ ” in the U.S. Constitution.

“A major expansion”

Roberts noted that while English common law was derived from the crown and permitted advisory opinions, the framers of the Constitution “specifically rejected [that premise] by separating the Executive from the Judiciary and limiting the courts to deciding actual cases and controversies.”

“Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar.”

Thursday’s ruling is “a big deal,” said Stanford Law School professor Michael McConnell, who as a federal judge wrote on this subject.

“Now every lawyer worth his salt will add a claim of nominal damages” to every lawsuit, McConnell said.

The purpose will be to force courts to make decisions about cases where the merits have been resolved by the opposing sides voluntarily but the nominal claim for damages remains.

The results of Thursday’s decision are simply unclear, University of Virginia law professor Ann Woolhandler said. The decision is out of keeping with other recent Supreme Court decisions, she observed.

$1 and a dream

What would happen if the defendant just paid the $1?

The court majority seemed to suggest that this might end the case. Whenever a plaintiff asks for only $1, the defendant should be able to end the case by giving the plaintiff $1, without the court needing to pass on the merits of the plaintiff’s claim, Thomas said in his majority opinion.

Roberts called that a “welcome caveat” that could save the federal courts from issuing “reams” of advisory opinions. But, he added, “For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks.”

Thursday’s opinion turns that constitutional limitation on its head, he said; it instead encourages litigants to “fight over farthings.”