The First Roberts Opinion:
As Juan notes below, the first signed opinion by Chief Justice Roberts was handed down today in Martin v. Franklin Capital Corporation. The subject matter is arcane — when to award attorney's fees under 28 U.S.C. 1447 if a state case removed to federal court is remanded back to state court — but I thought I would take a look at the opinion anyway.

  It's a nice piece of work, I think. It takes the reader through the issues pretty carefully, explaining the choices clearly at each step and justifying the Court's decisions using the text and context of the statute and the context of other related statutes. The opinion also announces a clear rule to guide district courts: "We hold that, absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal."

  Of particular interest, the opinion pays tribute to the two judges for whom Roberts clerked. The late Chief Justice Rehnquist gets a mention as the author of a relevant opinion: "As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994), . . . " (p.4). Judge Friendly is cited for a jurisprudential point: "Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982)."

  Finally, Roberts tries to keep the tone relatively light, such as in this line:
We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.).
  Okay, so it's not exactly a knee-slapper, but I thought the "good authority" line added a nice touch given the dry nature of the topic (even if the sentence itself didn't add much). All in all, a solid first opinion.
murky (mail) (www):
But when you read the opinion backwards in the mirror it says "Roe, I'm coming for you"
12.7.2005 1:46pm
only if you look at it upside down and add elipses.
12.7.2005 1:47pm
snead16 (mail):
"The opinion also announces a clear rule to guide district courts: 'We hold that, absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal.'"

What exactly is so "clear" about the phrases "unusual circumstances" and "objectively reasonable basis"? Sounds like standards large enough to drive an 18-wheeler through, particularly when the standard of review is abuse of discretion.
12.7.2005 2:09pm
I think it's a clear rule. At the end of the day, every case is always fact-specific, but it's hard for lower courts to operate when they don't even have clear guidance as to what the standard is. The Supreme Court's function of unifying and clarifying the law for the lower courts has often been lost in the spate of confusing plurality opinions in recent years.
12.7.2005 2:20pm
SimonD (www):
Today also produced Scalia's first writing of the term, a concurrence in Lockhart v. United States.
12.7.2005 3:32pm
Article III Clerk:
A couple of observations:

Only a law professor would consider an attorney fees provision "arcane." In fact this case was in serious need.

Second, Roberts's law clerk (who authored this opinion) will be glad to know you approve of the way it is written.
12.7.2005 3:52pm
Arthur (mail):
His first ruling favored defendants over plaintiffs. What are the odds? (hint: 50/50 is the wrong answer).
12.7.2005 4:23pm
Nicole Black (mail) (www):
It will be interesting to follow his decisions this term given that he's such an unknown factor. And, I'm not entirely confidant that he will vote to overturn Roe v. Wade and am hopeful that he'll respect precedent. Perhaps I'm being anive, but only time will tell.
12.7.2005 5:13pm
A3C, I am confident there are people besides law professors who would consider attorney's fees arcane.
12.7.2005 5:21pm
John Jenkins (mail):
Attorney fees as such might not be arcane, but this particular issue is for non-lawyers particularly (how many non-lawyers know what remove and remand mean, even?).
12.7.2005 5:46pm
MikeC&F (mail) (www):
His first ruling favored defendants over plaintiffs. What are the odds? (hint: 50/50 is the wrong answer).

Yep, and that heartless Ginsburg (along with Breyer and Stevens, who also do everything within their power to screw over the little guy) joined the opinion. We are on the road to serfdom.
12.7.2005 6:01pm
Splunge (mail):
On the road?


Pull, you worthless bastards!

Oops, gotta go...
12.7.2005 6:14pm
Anderson (mail) (www):
District courts in Mississippi, at least, don't seem to follow the "objectively reasonable" rule, even though the Court cited the 5th Circuit for it.

For ex, removing 32 days after the 30-day removal deadline. On any fair reading, that would require att'y fees to be paid.

Removing a case can delay it for months and cost the plaintiff thousands of dollars.
12.7.2005 6:58pm
Bluebook Nerd (mail) (www):
Are the CJ's clerks incompetent bluebookers, or what? He should hire me as his clerk. Some of the errors:

They don't seem to get the concept of a short-form case cite. It is "Id. at 123" and "Roe, 123 U.S. at 456" not "Id., at 123" and "Roe, 123 U.S., at 456".

p.8 has a See, e.g., cite where the See is not underlined but the e.g. is underlined.

CA1 is not the proper parenthetical for a circuit.

The CC Va Marshall cite does not conform to the bluebook.

Judge Friendly's first name is missing.

Supra is incorrectly used to refer to cases.
12.7.2005 7:46pm
Mr. P:
Enough with the man-crush already.
12.7.2005 8:59pm
The truly critical thing is that the only law review he cited in his first opinion was the one I toiled for.
12.7.2005 9:26pm
"Are the CJ's clerks incompetent bluebookers, or what?"

No, the court has a staff that double checks research and citations before the opinions go out, so the final edits are their call. And, as odd as it may seem, the Supreme Court is a higher authority on legal opinion drafting than the Harvard Law Review Association, and thus aren't really mistaken when they don't follow by its edicts.
12.7.2005 9:53pm
Dan Pawson (mail) (www):
This is also a slip opinion, not the final version which will undoubtedly be bluebook-perfect.

I'm very happy with this opinion, not because it comes to the right outcome for the right reasons (which it does), but because Roberts spends a good bit of time talking about how to interpret the statute, and that's going to be helpful going forward when we try to figure out his specific brand of textualism.
12.7.2005 10:12pm
Ira B. Matetsky (mail):
The Court has its own homegrown stylebook which has been developed and revised by the office of the Reporter of Decisions for more than 50 years. As a look at any opinion in the United States Reports will confirm, the Court's style differs in many respects from the Bluebook's or other style manuals'. "CA1" instead of "1st Cir." and "ante" and "post" for "supra" and "infra" are some examples.

In the same vein, in the 1950's, Justice Frankfurter famously threatened to withdraw an article from the Harvard Law Review if they kept changing "1 Cranch" to "5 U.S." The editorial board voted to let Frankfurter do it his way.
12.7.2005 10:13pm
The Court has never used the Bluebook, thank god.
12.7.2005 11:19pm
Article III clerk,

I believe "arcane" means "known or understood by only a few," not "unimportant." Also, my understanding is that Roberts writes his own opinions.

Bluebook Nerd,

As others have pointed out, the Supreme Court has its own style manual, and doesn't follow the Bluebook. Also, the Court has a professional staff that does most of the equivalent of "bluebook" editing, so citation errors (if any) are not necessarily the work of law clerks.
12.7.2005 11:38pm
nc_litigator (mail):
This subject matter is not arcane. It is directly related to the forum-selection fights that civil litigants engage in as a matter of routine.

Any plaintiff fighting a removal battle would like to pin the associated fees on the removing defendant instead of their client if they can. And if the plaintiff is a contingent fee, the pl's atty would love to get some extra $$ up front for his work.

A defendant with a terrible argument for removal will be somewhat less likely to remove if the likelihood of a fee award for guessing wrong is high. But if such an award is not likely, then many corporate defendants will remove and let the plaintiff expend resources and time to seek a remand. That can be a little "win" even if the remand motion succeeds.

"You have a creative argument that Company X is really a 'citizen' of State Y, and thus complete diversity really does exist? Let's try it."
12.8.2005 1:24pm
yours friendly (mail):
It is an absolute crime and a shame to uphold precedent that is clearly wrong. All this precedent jazz is based on the OConnor/Kennedy/Souter airhead opinion in Casey, and CJ Rehnquist's opinion upholding Miranda. Scalia eviscerated their wrong-headed opinions in both cases with about 85% of his brain tied behind his back.
12.8.2005 5:34pm
R. Friedman (mail):
I am a non-lawyer who knows and is concerned about removal. During the 70s I was a civil rights/anti-war activist in the South and we were constantly the subject of official harassment (charged with littering for leafleting, loitering for picketing under statutes whose very language had previously been ruled unconstitutional, injunctions against boycotts under state anti-trust laws, demanding peace bonds, etc.). At that time, federal courts were in the business of enforcing federal constitutional rights, so removal was an important source of relief. Unfortunately, some federal district judges (Harold Cox in MS and Robert Elliot in GA to name just two) did not follow the law, using tactics such as abstention in affirmative suits, delaying cases on their dockets, and remanding removed cases to state courts with attorneys fees against the civil rights movant. This introduced me to the statute and the use of mandamus, with its own arcanity, in the absence of an appeal right. I don't think Roberts added much to the law, but at least it allows district courts to make a distinction between cases where the movant seeks to enforce clearly defined federal rights and cases where a movant would have state law issues decided by a federal judge for purely tactical reasons (federal procedure is more favorable or docket congestion more serious).
12.8.2005 6:38pm
Richard 2 (mail):
The as yet answered question is why Roberts cited United States v. Burr, one of the most famous criminal trials in US history, in a civil case re: fee shifting. Obviously, it is not the best authority that could have been cited on the "discretion" question.

My guess is that he was paying tribute to his "judicial heros," Rehnquist, Friendly and Marshall, and that the Burr case was the most relevant opinion by Chief Justice Marshall that he could find.
12.8.2005 7:12pm