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More Unsound Criticism of Judge Roberts:

This is from a column by lawprof Goodwin Liu:

What we already know from Roberts's record is cause for concern. His legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.

Last year, for example, he wrote an opinion rejecting the civil rights claims of 12-year-old Ansche Hedgepeth, who was arrested, searched, handcuffed, booked, and detained by police for eating a single french fry in a subway station in violation of D.C. law. Although an adult committing the same infraction would have received only a citation under D.C. law, Roberts said the police's treatment of Hedgepeth served the "goal of promoting parental awareness and involvement with children who commit delinquent acts."

What, though, was the precise "civil rights claim[]" that Judge Roberts was responding to here? It was Hedgepeth's argument that the government policy unconstitutionally discriminated based on age. But of course the Supreme Court has generally held that age discrimination is constitutional if it's rationally related to any legitimate government interest -- the most deferential of the equal protection tests. Here's Judge Roberts' argument in context (some paragraph breaks added):

Rational basis review applies and we accord the challenged policies a strong presumption of validity. We will uphold them "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, 508 U.S. 307, 313, 113 S.Ct. 2096, 2100-01, 124 L.Ed.2d 211 (1993). What is more, "those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" [Id.]

We therefore need not review all the reasons given by the defendants in support of the challenged distinction between children and adults; it is enough that we find one reason rational. We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.

Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name -- an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children.

The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen -- detention until the parent is notified and retrieves the child -- certainly does that, in a way issuing a citation might not.

The district court had and we too may have thoughts on the wisdom of this policy choice -- it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears -- but it is not our place to second-guess such legislative judgments.

Given the Supreme Court's rulings that age is not a "suspect" or "quasi-suspect" classification, and therefore age classifications are permissible whenever they're rationally related to a legitimate government interest, it seems to me that Judge Roberts' decision was perfectly sound -- and that a contrary decision on the equal protection issue would have been inconsistent with the Supreme Court caselaw that Judge Roberts was required to follow. (As to why Judge Roberts' decision was also correct, and mandated by the Supreme Court precedents, as to the Fourth Amendment, see this post below).

Thanks to commentator "french fry fan" for the pointer to the Liu column.

Al Maviva (mail):
Cheezborger, cheezborger. It's hard to take Prof. Liu's arguments about his stringent form of rational basis review seriously after reading his defenses of race based quotas in higher education, which turned upon an exceedingly watery version of strict scrutiny review. Although even I must admit, those arguments in favor of institutionalized racism were hung upon a hook that was a little more substantial than a single French fry.

No Coke for you, Prof. Liu. Pepsi.
7.27.2005 4:54pm
Hattio (mail):
I had a sort of odd thought considering the Democrats options with regard to John Roberts. There has been a lot of discussion both here and elsewhere regarding whether the Dems should ask him specific questions on cases likely to come before him.
My question is this. Given that 1) many Supreme Court Justices have a tendency to slide left over their years on the Supreme Court, and 2) the fact that they probably can't stop Roberts anyway, could asking specific questions actually backfire. By pinning Roberts down, they may make a leftward slide on any particular issue less likely.
A related thought, can anybody think of a Supreme Court Justice who slid right over their tenure?
I know this is slightly off topic, but I was curious what others thought.
7.27.2005 5:12pm
Jason DeBoever (mail):
Every piece of written material that Roberts has penned has been concise, clear, and convincing. I'm increasingly of the opinion that even IF Roberts doesn't share my philosophies now(though I suspect he does), he'll have converted me before long anyway.
7.27.2005 5:31pm
Richard Riley (mail):
In response to Hattio, I believe Felix Frankfurter is usually thought of as "sliding right" over his career. He was a good New Dealer when appointed - he upheld Rooseveltian economic legislation and generally deferred to legislators in that arena, as expected. But when the individual liberty cases started arising in the postwar period (Jehovah's Witnesses etc.), Frankfurter's deference to legislatures and government authority made him at least look more conservative.

Same with Byron White - he was certainly perceived as becoming more conservative over the years (and perceived accurately - Bowers v. Hardwick and so forth). Again, this may have been more because the issues in front of him changed than because his judicial philosophy changed.
7.27.2005 5:45pm
Tom Hanna (www):
So the legitimate state interest served was making sure parents know their kids are eating junk food? Wow. It gets sillier the more I hear about it.
7.27.2005 5:57pm
Mark (mail):
Hugo Black is also generally seen as having become more conservative in his last years on the Court.
7.27.2005 6:42pm