Roberts: No Discretion, No Discernment, No Heart by KTK

John Roberts’s infamous ruling in the “French Fry” case has often been remarked on as an example of his “rule of law” approach to the Constitution. The Washington, DC Metro system has a – virtually unenforced – rule against eating in the subway. In 2000, a (black – but you knew that, right?) 12-year-old girl was arrested, handcuffed, and transported to juvenile detention and booked for juvenile trial for eating one Freedom Fry(TM) from her lunch bag while waiting for a train. The asininity of the case did not prevent her conviction. Her mother sued on grounds of violation of Fourth Amendment (no arrest without a warrant) and equal protection rights. Roberts wrote the opinion against her.

Roberts is often painted as some sort of humanitarian (!), and reluctant upholder of the unforgiving law, for this decision, because his opinion contained one remark to the effect that “No one is very happy about the events that led to this litigation.” However, he also saw fit to claim that his decision was justified because “[The arrest advanced] the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.” (Notwithstanding that it was the parent in this case who was suing to protest the abuse of her daughter under this imbecilic law, or the fact that a judge who believes eating one French fry is “delinquency” is unfit to write parking tickets, let alone Constitutional opinions.)

Nat Hentoff finally calls bullshit on this nonsense. As he points out in a somewhat rambling article, Roberts could have found a liberty interest in not being subject to absurd and abusive arrest practices:

Harvard law professor Laurence Tribe—whose books on constitutional law have often been quoted in Supreme Court decisions—addressed John Roberts’s disposition of this flagrant criminal act by 12-year-old Ansche Hedgepeth:

“Saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn’t that [decision by John Roberts] violate [the child's] liberty?”

He was referring to the essential constitutional interest in personal liberty that is particularly embedded in the Bill of Rights. Without those 10 amendments, the Constitution would not have been ratified.

Tribe went on to say, “The country needs to know, not how he will rule in particular cases—God knows, in the next 30 years, cases we can’t even dream of will come before him— but what will be his starting premises about the Constitution?” (Emphasis added [by Hentoff].)

As Tribe put it, “If you’re a minor, one french fry and you’re busted, [for the judge to show no discretion] needs some explanation.”

This is the real significance of the French fry ruling. It is not a humorous incident that shows Roberts’s warm side as he adheres to the rule of law – it is a chilling look at a man who simply does not believe the Constitution grants liberty except in specific very narrow circumstances, and who has no compunction about enforcing the most draconian rules or procedures against the most innocent citizens anytime the government asks him to (or even in ways they never intended). What is seen by most people as an aberration – the imposition of idiotically harsh procedures and penalties on the most innocent behavior – will be the civil rights regime under which every citizen suffers for as long as Roberts is on the Court.

Hentoff makes this point in the context of a discussion of judges and Supreme Court Justices who realized that human experience and human sympathy were a part of the law. As he notes, the rigid and unknowable Roberts’s decision in the French fry case “reveal[s] the core of his humanity”, and tells us how his experience and sympathy inform his own understanding of civil rights. It is far different from that of the best judges of the past.

[Justice William Brennan said] “The Framers bequeathed to us a vision of rulers and the ruled united by a sense of their common humanity. . . . We cannot console ourselves with the belief that reliance on formal rules alone is ever sufficient to be faithful to the vision of the Framers.”

And Judge Jack Weinstein, writing of the responsibility of jurists in “When Judges Are Asked to Do Evil,” reminds his colleagues on all our courts: “One path is unacceptable: silent acquiescence. The duty to speak up in protest is required of us, the judges, as of every person in this great country who is called on to do evil.”

How many such protests—in the interest of justice—are likely from a Chief Justice John Roberts on the Supreme Court during the next 30 years or more?