John Roberts Chief Justice John G. Roberts Jr. at Rensselaer Polytech in 2017. (Photo: Tim Roske)

Chief Justice John Roberts Jr. was evidently not pleased with the U.S. solicitor general, a view he made clear in a brief and pointed dissenting opinion Monday.

Roberts rarely displays annoyance with lawyers who make arguments before him or in their briefs. He is a stickler for procedure and has kept a reputation as an even-tempered justice.

In the case Myers v. United States, James Myers had filed a motion to proceed as a pauper and a petition for review. He was asking the justices whether the offense of “first-degree terroristic threatening” under Arkansas law qualified as a violent felony under the federal Armed Career Criminal Act. The U.S. Court of Appeals for the Eighth Circuit said it did qualify.

The Solicitor General’s Office initially waived a response to Myers’ petition, an indication that the government did not consider the petition worthy of review.

But the justices requested a response.

Noel Francisco, the U.S. solicitor general, told the high court that the Eighth Circuit correctly described the proper analysis under the Supreme Court’s 2016 decision—in the case Mathis v. United States—but “applied that analysis in a manner that is inconsistent with this court’s decision.”

Francisco urged the Supreme Court to grant the petition, vacate the lower court judgment, and return the dispute for a “fresh application” of Mathis.

“A remand would permit the court of appeals to consider the substantial body of Arkansas case law supporting the conclusion that the statute’s death-or-serious-injury language sets forth an element of the crime,” Francisco wrote.

Noel Francisco U.S. Solicitor General Noel Francisco. (Photo: Diego M. Radzinschi/NLJ)

And that is exactly what the majority did.

Roberts, however, who was joined by justices Clarence Thomas, Samuel Alito Jr. and Brett Kavanaugh, dissented.

Roberts said that nothing had changed since the Eighth Circuit concluded that Myers’ conviction for first-degree terroristic threatening qualified as a violent felony under federal law.

Roberts added: “The government continues to believe that classification is correct, for the same reasons that it gave to the Eighth Circuit. But the solicitor general asks us to send the case back, and this court obliges, because he believes the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result.”

The chief justice continued: “He wants the hard-working judges of the Eighth Circuit to take a ‘fresh’ look at the case, so that they may ‘consider the substantial body of Arkansas case law supporting the conclusion that the statute’s death-or-serious injury language sets forth an element of the crime,’ and then re-enter the same judgment the court vacates today.”

Vacating the judgment of a lower court, Roberts said, should be done only after “affording that court the courtesy of reviewing the case on the merits and identifying a controlling legal error. This case does not warrant our independent review.”

Roberts offered advice to Francisco about what he should have done about his concerns.

“If the government wants to ensure that the Eighth Circuit does not repeat its alleged error, it should have no difficulty presenting the matter to subsequent panels of the Eighth Circuit, employing the procedure for en banc review should it be necessary.”

If Roberts was unhappy, then Myers and his lawyer, Federal Public Defender Christopher Holt of Fayetteville, had to be pleased. They get another shot at convincing the lower court of their arguments.


Read Roberts’s dissent below:



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