In the legends of the University of Chicago, the late, irrepressible Jason Aronson etched a memorable place with a dissertation that encompassed Louis Hartz and the Earl of Shaftsbury: “Hartz, Shaftsbury, and Marx: An Unsuitable Trio.” But just a couple of weeks ago, Aronson’s strange grouping was superseded by what could be called an Unsuitable or Implausible Quintet: Roberts, Stevens, Souter, Breyer, Ginsburg.
This unlikely ensemble took form on the Supreme Court in the decision, announced at the end of April, Jones v. Flowers. I happened to be at the Court, along with a contingent of my students, on the day this case was argued, and the story, gripping in its own way, could be conveyed with Lincolnesque compression: Gary Jones purchased a house in Little Rock, Arkansas, in 1967, and he lived there with his wife until they separated in 1993. He departed, but his wife and daughter remained. The taxes had been folded in with the mortgage, but the mortgage had been paid off by 1997. The tax bills were then sent separately, by registered mail, but Jones was no longer there to receive them, and no one living at the house bothered to pass them on. Notices were sent and returned “unclaimed” for two years, and the state finally moved to put the property up for sale. And so, a house with a fair market value of around $80,000 was sold to Ms. Linda Flowers, who put in a bid of $21,000.
Jones had found his house sold out from under him, and under these conditions he argued that the state should have made more of an effort to insure that the news had been conveyed to him in time. Why hadn’t someone tried to track him down or even looked up his name in the phone book? (That was, of course, a slightly tougher task, looking for a Jones.) The state argued, on the other side, that he had a responsibility, after all, to keep the state informed about his current address. And here, as elsewhere, the state relied on owners having the incentive of their own self-interest to keep their records up to date and pay their taxes. Justice Scalia observed during the oral argument that, if the state had merely sent ordinary mail, no one would have suggested that the government had been negligent in mailing notices several times. But the chief justice pointed out that the state had used the form of mail certain to establish that the notices had not been delivered. What had not been used was the form of mail most likely to get through to the recipient, threatened with the loss of his home.
My students and I met with Justice Scalia right after the oral argument, and the question was posed to Scalia: This case would seem to represent a kind of “slam dunk” for the theory of jurisprudence that he has so famously expounded. If the people of Arkansas were offended by this manner of treating Mr. Jones, that sense of outrage would be readily conveyed to elected officials in the state. Surely, the people of Arkansas, knowing more about the customs and sensibilities of their own people, could come to a judgment on the form of notice they regard as sufficient. There would seem little need to invoke the federal Constitution, or find in the Constitution a preference for one form of mailing rather than another.
When the question was posed, Scalia, in that decorous, judicial style, took account of the other side: After all, he observed, the man’s house was being sold out from under him. Didn’t he have a right to be told?
The oral argument was in January, and when the decision was announced on April 26, Scalia was exactly where the student had expected him to be, joined by Justices Thomas and even Kennedy. But they were in the minority (and they would have been even if Justice Alito had been there when the case had been heard). The chief justice swung over to make some odd company. For the liberals, the move was understandable: The Court had inflamed people in the country with the Kelo case on eminent domain. Here was a chance to show that the liberal wing was not really insensitive to the property rights of ordinary folk owning modest dwellings. The conservatives had already made their own leanings quite clear on this matter, and so here was the chance to make a rather clear, easy point for their doctrines of federalism and judicial restraint. There seemed no pressing need to invoke the Due Process Clause of the Fourteenth Amendment and rip these kinds of decisions from the hands of legislators, sensitive to their voters and to local opinion. Writing in dissent, Justice Thomas did not see how the Constitution gave the majority any guidelines for commanding, as they did now, the use of ordinary mail and letters addressed to “Occupant,” rather than registered mail. Did it make sense to bend the Constitution in order to track people who were so inattentive to their own interests or to their own minimal responsibilities under the law? As Thomas put it, “The meaning of the Constitution should not turn on the antics of tax evaders and scofflaws.”
The case seemed to offer then a chance to chalk up a minor point for conservative jurisprudence. Why would John Roberts not follow his allies and tuck this one away? The speculations were tempting: Was this a useful occasion for John Roberts to bear out his remark that he had no grand philosophy of jurisprudence governing his judgments, no particular “theory” that claimed his allegiance? Some friends, seasoned in the law, found that remark hard to believe. They may be unsettled now to find that he spoke the candid truth. But for those whose view of the world is always anchored in box scores, here was Roberts’s chance to induce some salutary confusion by lining himself up, in one vote, with the liberal bloc. Still, the best guide, as ever, is to take a judge at his word when he is giving reasons. And in this instance, as he wrote, “We do not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed.” No doubt, he said, Jones should have been more diligent. But a government prepared to take his property should be obliged to act with the more earnest wit of one who genuinely wished him to know.
A plausible decision? Well … yes. Important to come down again on the side of property rights for people not especially rich or savvy? Emphatically yes. And might Roberts end up again one day with Stevens, Souter, Breyer and Ginsburg–if that foursome manages to get something right? I suppose. But something in that Unsuitable Quintet sets off tremors. Some of us will wish, under our breaths, that we shall never see it again. And then brace ourselves for the day when we may indeed see it again.
–Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College.