July 25, 2005
Roberts and the french fry ::
legal — tagged judges, legal, politics and SCOTUS
9:19 pm
So, despite my silence on the issue, I’m keeping track of the John Roberts nomination process. Throughout all the stories, I’m particularly interested in the substantive law that Roberts has developed throughout his very short career on the DC Circuit. Although many liberals and progressives are concerned about his stances on a variety of issues, from Congress’ power to regulate under the commerce clause to the reach of fourth amendment protections against searches and seizures, my understanding is that Roberts’ conclusions on these issues are more the result of his making a conservative interpretation of precedent, rather than is applying a conservative political ideology to the cases in which he as been involved. (It is a nuanced distinction, I know, but one worth paying attention to.)
As an example, look to Roberts’ opinion in Hedgepeth v. Washington Metropolitan Area Transit Authority (PDF opinion; the so-called french fry case). In that case, Judge Roberts spoke for a unanimous three judge panel of the DC Circuit Court of Appeals, upholding the arrest of a 12-year old girl whose only crime was eating a single french fry at a Metro station. Now, progressives have made a big deal about this case, because it suggests that John Roberts is insensitive to issues concerning individual civil rights. That’s a fair argument. But his conclusion has less to do with any specific political ideology or judicial philosophy, and more to do with precedents that have generally restricted rights to be free from individual searches and seizures. As an inferior court judge, Roberts, like all other circuit court judges, is required to follow the precedents of the Supreme Court, whether they be good or bad. And unfortunately, in the case of the Supreme Court, they have been quite bad when it comes to the Fourth Amendment. For a recent example, see Illinois v. Caballes, decided by the Supreme Court last term, in which the Court upheld a dog-sniff of the trunk of a car during an unrelated traffic stop. Considering that the Supreme Court is not bound by the precendents of any higher courts, his ruling in the french fry case indicates very little as to how he might rule in a similar case before the Supreme Court.
It still seems to me that John Roberts will be nominated. That’s not such a bad thing. He has consistently proven, both as an attorney and as a judge, to be a brilliant legal mind. He has adhered to the demands of precedent, even if it is inconsistent with the conservative political agenda (see, for example, his advocating in favor of race-based classifications for the state of Hawaii). That ability, more than any other, is the mark of a truly excellent jurist. But that is also an assertion of his potential—the world won’t really know what he’s like as a Justice until he’s actually on the bench.
[Note that this opinion is subject to change.]
