Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, July 21, 2005

Roberts' Authorship of Hedgepeth v. WMATA

Via Majikthise, Balkinization has a great post on the D.C. Circuit's unanimous opinion, per Judge Roberts, in Hedgepeth v. WMATA, in which the court upheld against 4th amendment and equal protection challenges the WMATA police's arrest and detention of a 12-year-old girl for eating a french fry in the metro under a recently implemented zero-tolerance policy. The equal protection challenge centered on the fact that the law authorized police merely to cite adults who violated the law, while it could be enforced against children only through arrest (probably in an attempt to guarantee that parents would learn of the offense, since one can, and children often might, throw out a citation rather than disclose it to unsympathetic parents).

I don't know that I agree with Kim Lane Scheppele's analysis of the implications of the case vis-a-vis Roberts' jurisprudence. The case implicated a fairly clear law, the constitutional questions are well-settled, and the case was inescapably controlled by the Supreme Court's decision, however bothersome, in Atwater v. City of Lago Vista. The D.C. circuit court, whatever horror stories you've heard and are bound to hear in the next couple of months, like most circuit courts, in the aggregate follows the instruction of the United States Supreme Court, as its place in the larger scheme requires.

In any case, I find Scheppele's discussion, as well as the comments, extraordinarily nuanced and well worth your time. We're bound to see so much amateurish and tendentious (if not downright risible) quote-unquote legal analysis in the coming weeks and months, I really don't think anyone can afford to ignore the real discussions that reflect some knowledge of how courts do what they do when they pop up. So go read the post already.

UPDATE: Bruce Shapiro at the Nation, in one fell swoop, manages to overstate the import of the anti-Roe footnote in Rust, misstate the import of Roberts' ruling in the Endangered Species Act case (in which he merely dissented from the denial of en banc review for reasons having principally to do with what has been largely accepted as a poorly reasoned majority, and recognized the possibility that the same result might be reached by a more valid path), and accuse him of being "doctrinaire" for following clear Supreme Court precedent, his sworn role as a judge on the court of appeals.

The french-fry case suggests that behind Judge Roberts's famous amiablity--which has won him influential friends in both parties--lies a far more doctrinaire personality. Whiffs of that ideological rigidity leak out of his careful opinions and briefs. Hostility to environmental regulation? Yes, at least in his ruling in a California land-development case in which he sought to weaken the Endangered Species Act. Hostility to reproductive rights? As a deputy to solicitor general Ken Starr in the Reagan years, he curried favor with the antiabortion right by adding an irrelevant footnote to his briefs in a family-planning-funding case, arguing that Roe v. Wade was "wrongly decided and should be overturned." In his appeals-court confirmation hearings, Roberts said this footnote simply reflected Administration policy, adding that he regards Roe as settled law; but his willingness to go beyond the call of duty and politicize his briefs suggests, at a minimum, enthusiasm for revisiting the issue.

For his encore, he makes valid points about the underlying conservatism one reasonably can infer about Roberts. But over the course of his discussion, Shapiro mostly demonstrates how unreliable the commentariat is going to be in helping the public figure out how to view the nomination.


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