Perhaps nothing has invigorated the bases of both parties than the judicial confirmation battles, particularly at the Supreme Court level. The far right has made re-shaping the court a major goal, and liberals have devoted considerable efforts to stopping them.
Today the Supreme Court decided the case of Jones v. Flowers, a case determining what efforts a government must take to provide notice to property owners when it intends to seize the property as a result of a tax delinquency. The decision was written by Roberts, and joined by the four "liberal" members of the court, over the dissent of the two hard conservatives and one moderate conservative. Does this decision indicate that Roberts, even if not a liberal, may not turn out to be the conservative ideologue that the right hopes for? More on the flip...
The Petitioner in the case, Gary Jones, was the owner of a house in Arkansas, where he previously resided with his family. After separating from his wife he moved out, but continued to pay his mortgage for the 30 year term. After the mortgage was paid off, Jones ceased to pay his property taxes (previously paid by the mortgage company) and the property became delinquent.
In 2000, the Arkansas Commissioner of State Lands, sent a certified letter to the residence notifying Jones of his delinquency. Jones was not there to sign the letter, and it was returned to the post office. Two years later, a public notice of sale was published in a local newspaper, and Jones' property was put up for public sale. Another certified letter was sent to Jones at the residence informing him that his house would be sold to Linda Flowers (the respondent). Jones only found out about the forfeiture and sale when Flowers served a Notice of Detainer on his daughter, who promptly informed Jones.
It is established law that when the state attempts to take someone's property, the state must make reasonable efforts to give notice and an opportunity to be heard to the property owner. The issue in the case was whether the sending of notice by certified mail, combined with publication of the sale in a local newspaper, met constitutional due process requirements.
In a 5-3 decision, the Court held that it did not. The decision was written by the Chief Justice and joined by Ginsburg, Breyer, Stevens and Souter. Justice Thomas wrote a dissent joined by Scalia and Kennedy.
Roberts noted that if the state really desired to notify a property owner of a delinquency, it would not simply send out a certified letter and do nothing if it was returned unclaimed. Although the Court did not require the state to undertake efforts as far as, say, looking through the phone book and other records to track Jones down, it did hold that it had to do something more (perhaps following up with regular mail, which would allow a relative to view the contents or allow a subsequent owner to notify the post office of the previous owner's address).
Two things struck me about this opinion. First, it was a very common sense based opinion with sympathy directed toward "the little guy." Although it cited much precedent, it also took a modern view of matters, such as noting how most other states currently provide significantly heightened protection to ensure notice. This is not in line with either the hard line originalism or the hard line textualism which is the feature of the far right Justices.
The second was a bit more obscure. The state argued among other things that Jones should be on notice that if he had failed to pay his taxes, that he would forfeit his property. Roberts rejected that, stating that just because the owner knows something WILL happen does not excuse the state's obligation to notify him when it DOES happen. In support of this, Roberts cited Dickerson v. United States, the case which reaffirmed the police's obligation to cite Miranda rights to suspects. That case noted that even if Miranda was decided in error as an original matter, that the Miranda rights had become so embedded in society's understanding of the constitution that it should not be reversed. That opinion was written by Chief Justice Rehnquist, and prompted a nearly vitriolic dissent by Justice Scalia, who vowed to continue to vote to allow the federal government to ignore Miranda in the future.
None of the above means that Roberts is going to be a liberal justice, or that he is wedded enough to stare decisis to uphold precendents such as Roe v. Wade (Rehnquist, the author of Dickenson, nevertheless voted in dissent to overturn Roe v. Wade). This is, of course, only one case. But it struck me as an interesting decision, because it very clearly rejected a far right ideologue's approach to the law, even in a case where a moderate conservative such as Kennedy voted the other way.
We'll see how Roberts votes in future cases. But I'm betting that while we may not like many of his votes, he does not turn out to be a far right justice in the mold of Scalia or Thomas.
