The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thompson v. United States Reminds Me Of How Well Chief Justice Roberts Can Write
And another 9-0 reversal of a federal prosecution of an elected official.
In any given term, a Supreme Court justice will write about six or seven majority opinions. Some Justices, like Thomas and Jackson, routinely write separate concurrences and dissents. By contrast, Chief Justice Roberts rarely writes a separate writing. Usually, the only time we get to see Roberts write is in a majority opinion. And invariably, Roberts assigns himself the most high-profile case. And, more often than not, Roberts is trying to keep together a fragile majority opinion, or is engaging in some act of judicial obfuscation to hide what he is actually doing. In either case, Roberts does not speak plainly, but instead uses locutions and imprecise language.
But every now and then, the Chief assigns himself a "regular" case. These low-profile matters have no obvious political valence, and often command a large majority of the Court. Here, Roberts can demonstrate why he was once the most gifted lawyer of the day. And, despite all I say about the Chief, Roberts is still the best writer on the Court. Justice Kagan used to be a close-second, but her latest opinions have leaned too much into the snark, and have become less pleasant to read. Justice Barrett is third. She can say more in a few paragraphs that others can say in many pages.
Today's decision in Thompson v. United States is a joyous Roberts opinion. He writes for the entire Court and settles the matter in less than 10 pages. This paragraph is a gem.
We start with the text. Section 1014 criminalizes "knowingly mak[ing] any false statement or report." It does not use the word "misleading." Yet false and misleading are two different things. A misleading statement can be true. See Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91, 102 (1990) (noting that a "statement, even if true, could be misleading"). And a true statement is obviously not false. See Victor v. Nebraska, 511 U. S. 1, 10 (1994) ("[T]o suppose that the same proposition is both true and false . . . is manifestly absurd." (quoting 1 Works of James Wilson 519 (J. Andrews ed. 1896))). So basic logic dictates that at least some misleading statements are not false.
Most judges would have taken a few paragraphs to convey this concept. Roberts did it flawlessly in a few sentences. Yet, I found this paragraph so bittersweet. Sweet because it shows that Roberts is capable of razor-sharp legal reasoning with tight prose; bitter because it shows how far Roberts falls when he engages into flimsy alternative dispute resolution. If only Roberts could have said "established by the state" means "established by the state." Basic logic so dictates.
And this passage makes me see the Solicitor General holding a dictionary in one hand a thesaurus in another.
The Government wisely agrees that "false" means "not true." Brief for United States 14. But, dictionary in hand, the Government notes that "false" can also mean "deceitful." Id., at 15 (quoting Black's Law Dictionary 748 (3d ed. 1933); alterations omitted). And, thesaurus in the other hand, the Government adds that "false and misleading have long been considered synonyms." Brief for United States 26 (citing Webster's Dictionary of Synonyms 327,549–550 (1942)). Absent from the Government's account, however, is the fact that some misleading statements are not false, as the Government acknowledged at oral argument.
His writing paints a perfect picture. If only the Chief could have said "with taxing power on one hand and the commerce power in the other . . . the fact that an exaction raises money does not make it a tax."
This opinion is important in another respect: yet another 9-0 reversal of a DOJ prosecution of a public official who allegedly engaged in malfeasance. DOJ's track record in this regard is not good. Yet, if you read the opinion, you would have no idea that "Patrick Thompson" was a politician. The case was styled in the cert petition as Patrick D. Thompson. The "D" stands for "Daley." Yes, that Daley--the Chicago family that has yielded many elected officials.
This Daley was the grandson and nephew of two mayors. And this Daley was an Alderman when he was indicted. Anyone doubt that the Feds placed him under a microscope because of his family lineage? And under local law, he was barred from serving as an Alderman because of his conviction. Anyone think the Feds thought it would be good to get this guy out of politics? If only he had just engaged in insurrection. Well, at least for now, Thompson may be eligible to run. But Justice Jackson's concurrence explains this freedom may be short-lived: even though the Judge erred, he seems to have given correct instructions. (Here, the former District Judge actually reads the record and jury instructions; good for her.) Thus, the Seventh Circuit will almost certainly affirm. Or Trump may find this another case of a weaponized justice system and pardon Thompson.
Curiously, the Chief's opinion omits the "D" middle initial from the caption. I wonder if Roberts wanted to keep politics out of the case, and erased how Thompson identifies himself. What, you though I would write an entire post about the Chief without at least some criticism?
