Chief Justice Roberts Adds a Touch of Noir to His Dissent

Tony Mauro

Legal Times

Three years into his job as chief justice, is John Roberts Jr. already getting bored with traditional opinion-writing? Or is it just one more way in which he is following in the footsteps of William Rehnquist, his predecessor, mentor and amateur mystery writer? Or does Roberts have a law clerk who's a descendant of Dashiell Hammett?

These are just three of the questions that come to mind after reading an extraordinary dissent from denial of review issued Tuesday morning by the Supreme Court in Pennsylvania v. Dunlap, a fairly routine drug arrest case raising "probable cause" issues. Roberts, who was joined by Justice Anthony Kennedy, wrote the dissent, and this is how it begins:

"Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.

"Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office."

The rest of the dissent is written in routine opinion-speak. Just another day at the office, you might say, except for those top two paragraphs. Paul Levine, a prolific Florida mystery writer and former lawyer who co-created First Monday, the short-lived TV drama on the Supreme Court, said after reading Roberts' work today, "Good for the chief. Faux Hammett and imitation Chandler beat legalese any day." He added, "My guess is that the chief lost a bet with Scalia on the baseball playoffs. If Roberts wins the next wager, Scalia will have to write an opinion in iambic pentameter."