LawReader quoted in article on Justice Roachs legal philosopy

The following article quoting LawReader was featured in the Herald Leader.

Roach Admires Scalia – To Noble therein lies the rub

By Brandon Ortiz
HERALD-LEADER STAFF WRITER

Justice John Roach and Judge Mary Noble have staked out starkly different judicial philosophies in their campaigns for the Kentucky Supreme Court, even as they’ve each accused the other of being a judicial activist.

Roach calls himself a textualist “framed by original understanding” in the mold of conservative U.S. Supreme Court Justice Antonin Scalia. He says he will merely apply the law and not legislate from the bench.

Noble promises to apply the law regardless of whether she agrees with it. But she says judges must remember the primary job of the courts: to promote justice. Roach’s academic approach treats people like “case studies,” Noble said.

“It is real easy, from an academic standpoint, to get all caught up in ideas, and labels and positions, and never think about the fact that that case belongs to real people,” Noble said.

Thus far, Roach has held true to his philosophies in the 15 months he has been on the Supreme Court, said Shannon Ragland, publisher of the Kentucky Trial Court Review.

His opinions have mostly sided with defendants in civil cases, but he has occasionally sided with plaintiffs, Ragland said.

Ragland likens Roach to U.S. Supreme Court Chief Justice John Roberts: a judicial minimalist who supports the smallest possible role for the court. Roach is unlikely to extrapolate new rights from existing statutory or constitutional law, Ragland said.

Ragland said Noble is an unknown commodity because she applied, rather than wrote, precedent as a trial court judge.
But the public might not like all the consequences of Roach’s approach, said Ragland, who attended law school with Roach.

“Everybody loves to say they are for judicial restraint,” Ragland said. “But what does it mean? It is easy to say it, but I don’t think everybody is always for exactly what it means. And Roach is — unapologetically. He has the courage of his convictions, even if it leads to an unpopular result … like Scalia.”

This month Roach joined a dissent in Krause vs. Commonwealth that law blogger Stan Billingsley, writing on www. lawreader.com, said would condone police lying to bypass obtaining a search warrant, weakening Fourth Amendment protections against unreasonable search and seizure.

Billingsley said the dissent seems to indicate that Roach will have an “anti-Bill of Rights philosophy.”

A state trooper, who suspected Frederick Krause of possessing drugs but knew he would not consent to a search, fabricated a story about Krause being accused of raping a young girl, according to the majority opinion. The trooper asked to look around his house to see if his furnishings matched descriptions by the girl, and Krause consented. The trooper then found evidence of drugs that led to a conviction.
The Supreme Court, in a 5-2 decision, threw out the drug evidence, saying “the use of this particular ruse simply crossed the line of civilized notions of justice.”

Roach and Justice Donald Wintersheimer disagreed, saying police did not coerce the man into agreeing to a search.

In a recent interview, Roach defended the dissent.
“He was not in a situation believing that he did not have the ability to refuse,” Roach said. “Krause easily could have told him to leave.”
Scalia the activist

Noble finds irony in Roach’s admiration of Scalia, whom she considers a judicial activist. Noble noted a recent study by University of Kentucky law professor Lori Ringhand that concluded that Scalia is the second most active justice in terms of striking down federal laws.

Scalia “truly is an activist judge,” Noble said. “And he is trying to hide it under the cloak of saying he is an originalist or textualist. Yet he has advocated more change of case law than any other justice on the Supreme Court.”

A defining difference between the candidates is on the jural rights doctrine, Noble said.

The jural rights doctrine, unique to Kentucky, was created by a state Supreme Court ruling in 1932 and prevents the legislature from eliminating torts that existed in common law at the time of the state constitution’s drafting. The doctrine has made it difficult for the General Assembly to cap punitive damage awards in lawsuits.

In a case that came before the Fayette Circuit Court, Williams vs. Wilson, Noble applied the jural rights doctrine to declare unconstitutional a law that limited punitive damages for gross negligence. Her ruling was affirmed by the Supreme Court.

Noble said that Roach criticized her ruling when, as the governor’s general counsel, he interviewed her for the Supreme Court vacancy created by James E. Keller’s retirement. Noble and Roach were later nominated for the position, and Roach was appointed.

“We had a huge discussion about this, and he told me how wrong I was and that the law needed to be changed,” Noble said. “I know he has a personal agenda about the jural rights doctrine.”

Noble says the doctrine probably was judicial activism at the time of its development, but “it is an 80-year-old doctrine. It is not a doctrine of dysfunction.”  Not ‘outcome-oriented’

Roach said he didn’t interview Noble but had breakfast with her and that any opinions he may have expressed were those of his client, the governor. Roach declined to state his personal position on the doctrine.

Judges must not be outcome-oriented, and must pay no regard to winners and losers in their rulings, Roach said.

Courts must follow the original intent of the constitution’s drafters, he said.
He points to his concurring opinion in Posey vs. Commonwealth as a “perfect example of original understanding.” The 2006 case is about a convicted felon accused of possessing a gun, who argued that laws preventing felons from owning guns violate the state constitution.

Roach researched the Kentucky constitutional convention of 1890, learning that a committee chairman traced the rights outlined in the state constitution to the English Bill of Rights and Magna Carta. Roach examined 16th-century cases and concluded that felons have never had the right to bear arms in the common law, he said.

Noble called textualism a meaningless catch phrase that oversimplifies the law.
“A textualist will say to you that ‘I take the plain text of the law and I apply it.’ Well, according to whom?” Noble said. “This is the thing that is so humorous to me. If the language were that plain, why would we have had all these cases all these years?”

Replied Roach, “To criticize any … judicial interpretive theory because it is not 100 percent perfect — but then to not offer any other theory — seems to me not a very good way to engage in meaningful debate.”

 

Comments are closed.