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Chief Justice John Roberts Jr. on Wednesday announced his first signed opinion since joining the Supreme Court, and it fit the Court’s traditional formula for maiden efforts: brief, unanimous, and not destined for the top 10 list of the Court’s decisions of the term. Roberts’ debut came in Martin v. Franklin Capital Corp., an attorney-fee case argued Nov. 8, which is an unusually quick turnaround for any justice, novice or veteran. The case, which interpreted the statute that governs the removal and remand of civil cases between state and federal courts, did not lend itself to soaring constitutional rhetoric, and it got none from Roberts. Instead it was a straightforward eight-and-a-half-page ruling with few flourishes and only one footnote. The Court ruled that when a case is removed to federal court but then sent back to state court, attorney fees should not be awarded when the party who sought removal had an objectively reasonable basis for doing so. It is customary at the Court for a justice’s first opinion to come in a case that draws no dissents. But Kenneth Geller of Mayer, Brown, Rowe & Maw, a longtime connoisseur of Supreme Court opinions, noted that Roberts, as chief justice, “could have assigned himself anything. It shows some humility that he assigned himself such an unimportant case.” But as routine as the case might have been, the opinion was studded with interesting nuggets, suggesting that Roberts did not dash it off thoughtlessly. For one thing, Roberts neatly managed to cite both of the judges he clerked for: his predecessor, the late Chief Justice William Rehnquist, and the late Henry Friendly Jr., a judge on the U.S. Court of Appeals for the 2nd Circuit.
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On Page 4 of the opinion, Roberts wrote, “As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy. . .” an unnecessary but forgivable shout-out. Two pages later, Roberts invoked a 1982 Emory Law Journal article by Friendly titled “Indiscretion About Discretion.” Roberts clerked for Friendly from 1979 to 1980. Before Roberts joined the Supreme Court, legal-writing guru Bryan Garner, in a column in Legal Times, rated Roberts’ appeals court writings as “above average,” but took him to task for excessive use of acronyms and footnotes. Wednesday’s opinion shows Roberts may have taken the criticism to heart. Acronyms were almost nonexistent, and only one footnote littered the opinion. As for what the content of the decision shows about Roberts, it clearly came out the way the business community was hoping. Robert Weiner, a partner at Arnold & Porter who wrote a brief in the case for the Product Liability Advisory Council, said the fear of having to pay attorney fees to the other side was a disincentive for businesses seeking to remove product liability suits to federal courts. Weiner called the Roberts opinion “very well written and thoughtful,” adding that it contained “a little disquisition on judicial discretion that is one of the clearest I’ve ever seen.” For anyone who attended the oral argument in the case, Wednesday’s decision also shows that Roberts is unafraid of standing up to Justice Antonin Scalia. One of the relevant precedents in the case was a 1968 case called Newman v. Piggie Park Enterprises. When one of the lawyers at argument referred to the case by the shorthand Piggie Park, Scalia interrupted and said, only half-jokingly, “You know, it really would improve the dignity of this Court if we referred to Piggie Park as Newman.” Without apology, Roberts referred to the case throughout his opinion Wednesday as Piggie Park.


Tony Mauro can be contacted [email protected].

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