Wednesday, July 20, 2005
With the nomination of John G. Roberts, Jr., to replace Justice Sandra Day O'Connor on the Supreme Court, there will be lots of discussion about his judicial philosophy and its potential effect on different areas of the law. One question I thought about briefly is whether his nomination will have an effect on white collar crime cases, and the answer is a resounding possibly, but it's hard to estimate because Supreme Court cases in the area are rather infrequent, at least compared to more mainstream criminal procedure decisions. Cases that affect white collar crime investigations and prosecutions don't always lend themselves to one particular type of judicial philosophy. This past term included the unanimous reversal of the conviction in Arthur Andersen based on flaws in the jury instructions for the obstruction charge, and the 5-4 decision in Pasquantino on the mail fraud statute in which Justice Thomas wrote the majority opinion and Justice Scalia joined in part the dissent by Justice Ginsburg. Given that Roberts would likely be viewed as being in the conservative camp on the court, it's hard to figure out where he would stand in a case of statutory interpretation like Pasquantino.
One area in which the resignation of Justice O'Connor could be felt is in relation to grand jury subpoenas for documents. She wrote once, in a concurring opinion, that the Court's decision in U.S. v. Fisher sounded the "death knell" for the privacy rationale of Boyd for application of the Fifth Amendment. U.S. v. Doe, 465 U.S. 605, 618 (1984). The Court's more recent decision in U.S. v. Hubbell took a more jaundiced view of a broad grand jury subpoena, and Roberts may be more willing to consider arguments in favor of limiting the broad inquisitorial power of grand juries. If Chief Justice Rehnquist were to resign in the next year or so, that could have an even greater impact on the Court's grand jury jurisprudence. The Chief Justice wrote the broad collective entity opinion in Braswell, a 5-4 decision in 1988 in which Justice O'Connor was in the majority and Justices Scalia and Kennedy dissented, and he was the lone dissenter in Hubbell.
Judge Roberts' track record during his fairly brief stint on the D.C. Circuit gives no hint about how he will rule on white collar cases because the few criminal decisions in which he wrote the court's opinion largely involved, not surprisingly, sentencing and procedural issues, common fare for a circuit court judge. Interestingly, while most of the cases Roberts argued before the Court were civil matters, he was appointed to argue on behalf of the defendant in U.S. v. Halper, a double jeopardy decision that briefly held that civil sanctions could possibly preclude a subsequent criminal proceeding if they were punitive, a position the Court overturned a few years later in Hudson. Halper was quite important to white collar practitioners because of its effect on parallel proceedings. (ph)