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July 21, 2005

How to read Ansche Hedgepeth’s french fry

Kim Lane Scheppele has a terrific discussion of what Roberts' opinion in the Hedgepeth v. WMATA says about how his views diverge from those of Sandra Day O'Connor.

Kim identifies two critical differences. Roberts doesn't share O'Connor's reservations about the constitutionality of full custodial arrests for extremely minor offenses. More importantly, Roberts doesn't seem sympathetic to O'Connor's desire to balance the demands of effective law enforcement against the constitutional liberties of non-violent offenders. Roberts believes that no balance is required. He maintains that if a police officer sees you committing a crime, no matter how minor, the officer has an unfettered right to arrest you.


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As Scheppele's discussion seems to concede, it would have been inappropriate for Roberts or any judge to simply choose to treat a dissenting opinion as governing, so I'm not sure how his decision to apply the precedent as it stood reveals anything about his approach as contrasted to the approach that he was constitutionally bound not to follow. The only thing that seems to be allegedly revealing is his decision not to try to create new doctrine based on the discretionary/compulsory distinguishing factor. I'm not sure if that even would have been wise to do, as there are strong arguments against using constitutional restrictions to entrench police discretion and punish the implementation of transparent, more impartial standards of police behavior. Regardless, it would have been a relatively audacious move from most circuits to do so.

That said - there's no doubt in my mind that Roberts will tend to have a Rehnquistian disdain for restraining police power in the interests of the rights of private citizens. But that impression's not from this case - it's from the fact that he's a member of the Fed Society Washington Kool Kids.

Mark Fisher, the metro columnist in the Washington Post, is the only MSM writer who is on to this.

I don't think Kim was saying that he had the option of taking up O'Connor's minority opinion. I think the argument is that he could have taken up Hedgepeth's interpretation of the key issue in Atwater.

H. noted that the majority in Atwater acknowledged that there are very serious constitutional issues arising from custodial arrests for trivial local infractions. IIRC, the majority agreed that custodial arrest for seat belt offenses would have violated local common law because it was so invasive.

Hedgepeth noted that the reason the majority found against Atwater was that there was the discretion issue. The majority didn't think it was appropriate to force a police officer to decide to issue a citation instead of a warrant if he or she had the option to do one or the other. So, she argued, the substance of Atwater supported Asche and not the WAMTA. Add to that the strong dissent from O'Connor and the narrow split.

The consensus seems to be that Roberts is an authoritarian establishment Republican, but not quite a movement conservative.

I think that people are mixing up the question of how bad Roberts is, with the question of how ferociously he should be opposed.

He's pretty bad, but (like Gonzales) not as bad as the worst. However, thinking that way allows the Republicans to continually float potential horror-show candidates in order to make another very bad candidate look sort of OK. I think that's what's happening.

After the last 20 years or so, all the rules of civility are inoperative. No President "has a right to have his appointees confirmed" any more. Clinton didn't; a deal was cut on Ginsberg, who is quite moderate, but no deal is being offered now. And an appointee can be opposed for any reason; there's no need to dress it up in legalisms, or to prove that the appointee is a perv or a monster.

The sad fact, though, is that the Democrats have a terribly weak hand because of the Senate losses in 2004. The chances of stopping Roberts, even with a filibuster, are slim to none. So I think the question now is to resist Roberts (knowing that we will lose) in whichever way sends the best message to the voters about the Democrats, the Republicans, and Roberts. How that would be done I'm not sure.

Scheppele's reading is this:

But there was wiggle room to distinguish Ansche Hedgepath’s case from Gail Atwater’s – wiggle room purposively left by the Atwater majority.

And that's correct. The court's opinion, generally in dicta but also in the closing section summarizing the holding, is written in a way that would allow a subsequent court to find a different rule for compulsory arrests with out overturning Atwater. That's a much narrower and more grounded reading than this:

Hedgepeth noted that the reason the majority found against Atwater was that there was the discretion issue. The majority didn't think it was appropriate to force a police officer to decide to issue a citation instead of a warrant if he or she had the option to do one or the other. So, she argued, the substance of Atwater supported Asche and not the WAMTA.

The Atwater court gave a litany of reasons for their holding: the need for broad and reliable rules in 4th amendment jurisprudence (not only for police but for legislators); the pre-eneactment pedigree of nonviolent misdemeanor arrests, which would support an intent thesis; the post-enactment history of nonviolent misdemeanor arrests, which would both confirm intent and create a pattern of reliance; as well as the difficulties of forcing police to make ad hoc determinations of offense elements. Only one one of those arguments is inapplicable to this case. It's extremely spurious to say that because one line of justification is inapplicable, the "substance" of a precedent "supports" your finding.

All we know from the french fry opinion is that Roberts chose not to avail himself of the grounds for distinction. I would personally lean towards that being a good thing. I don't think it's wise to say that legislatures may order compulsory arrests only for jailable offenses - because that simply creates an incentive to make offenses nominally jailable. I also don't think it's wise to force decisions to make arrests compulsory completely off-record - I'd rather the decision be made in public documents, statutes, or pronouncements than in the police department locker room.

Incidentally, if people want a non-triple-salted reason to look askance at Roberts, I recommend this. CC/ESA issues remain off the radar for most Americans, but they shouldn't be - conservative legal folks have been angling for this for decades.

Well, no Democratic president has the right to have his nominees confirmed. It's a different story for Republicans. Of course, a stickler might argue that the president only has the right to nominate, whereas Congress has the right to confirm, but why bother with petty details?

In the last two days I've noticed a certain uniform quality to posts made by Roberts' supporters across the web. Knee-jerk accusations of obstructionism coupled with high-sounding sentiments of (supposed) objectivity are the order of the day. It's a nice try, but I doubt anyone is that interested in debating the noise machine.

minor correction: It's WMATA (Washington Metropolitan Area Transit Authority, see, not WAMTA.

Face it: the girl deserved Gitmo for what she did. She could have eaten a Freedom Fry, but she chose to align herself with "the other side."

Heterosexually yours,

Ooops. Fixed now.
--Mildly dyslexically yours,

Hippodemeia, almost everything that Republicans will say about anything a Democrat says or does about Roberts was scripted before Roberts was even nominated. They just have to cut and paste.

Focusing on Robert's social and civil-rights positions kinda misses the point. The man is the economic justice from hell. Republicans have always known how to fight the class war; Democrats used to but have forgotten. Southerners (and Dixie is our modern Republican Party) especially understood, with slavery and sharecropping and right-to-work laws that if you can grab them by the wallets their hearts and minds will follow. Keep em poor and tired and scared and they won't be doing no organizing.

Used to be the Democratic Elites understood that they had to take a pay cut to keep their freedom. That the blue collar types just wouldn't identify with the double-major in English and Philosophy who just damned well deserved five times the income of the janitor or steel-worker and her abortions too, dammit. Fair's Fair. So Democrats just took the wrong side of the Class War...Lieberman is just creaming his pants over Roberts...and now just can't understand why they are losing all the other battles too.

I'm with Bob. Though Roberts hasn't been a judge for very long, I find it pretty significant that, in the three labor cases he's heard, he's sided against the union every time. Not surprising, given the kind of clients he represented in private practice. But this facet of Roberts' "judicial philosophy" deserves far more attention than it has been getting.

Here's how I'd read the 14yo French fry flaunter's future: arrested at 14- and it'll be with her forEVER. These days, when a local cop can pull you over, and come back with a bench warrant for a seat belt beef 2 years old and 2 State's away in about 4 minutes, she's got a big fat life-burden. She will Never sit on a jury (because prosecutors only want Virgins, ie no arrests, Certainly no convictions, and hopefully no "family histories"- because they don't want compassionate, knowledgeable people- they want Pure, Entitled, and Exceptional citizens- the ones who've never been caught); may have trouble getting childcare or teaching (or any public service) jobs; may have a problem getting into some schools; and will never be able to run for Congress (unless she's black- where it might serve as a badge of 'Honor' to people who value the 'experienced' candidates).
Roberts is the Perfect A-hole nominee from Bush- he's a mirror image of white privilege (and just inferior enough that he had to strive for it- no "gentleman's C-" for him- he wasn't cool enough- & they both know it). Listen: "If THOSE people break the Law, THOSE people deserve to be PUNISHED. I'm smart enough to be a lawyer- so nobody's gonna do ME that way- but they're not ME; so they deserve everything the cops dish out." The cops are there to enforce the Status Quo... and white male privilege is on the Right side of that line...

I'm no lawyer, but does this mean infants can be handcuffed and strip searched for breast feeding? Bottle feeding?

Not unless a legislature makes it a strict liability crime for an infant to breastfeed.

I'm not sure where bob mcmanus is getting his information, but the assertion that Roberts voted "against the union" in the three labor cases he's heard is completely inaccurate. In ITT Industries, Inc. v. NLRB, Roberts voted in support of the court's holding that ITT violated federal labor law when it denied organizer-employees from one ITT site access to the parking lot of another ITT site. That came out at the end of last month. In Resort Nursing Home v. NLRB, Roberts voted to uphold the Labor Baord's finding that an employer violated federal labor law by refusing to abide by a labor contract entered into by the multiemployer association of which it was a member. In Dunkin' Donuts Mid-Atlantic Distribution Center v. NLRB, Roberts voted to affirm the Labor Board's holding that a company that leased employees of another company was jointly liable for labor law violations. There are others, but you get the point. let's try to be accurate and avoid sweeping statements unless one's done all one's homework.

Ooops. Read the attribution wrong. I should have said "Continental Op" not "bob mcmanus." Apologies.

My previous comment should have said "the three labor cases in which Roberts authored an opinion". Sebastian is correct that Roberts did join with other judges' opinions in other cases that came out favorably to the union, and I thank him for pointing out my error. I stand by my assessment of the three cases I referred to. In two of those cases -- LeMoyne-Owen College v. NLRB and AFSCME v. FLRA -- Roberts bends over backwards to rule against the unions. In the other case -- AFL-CIO v. Chao -- Roberts would have gone even further than the horrible majority opinion to uphold onerous financial disclosure rules for unions. The fact that he went along with someone else's opinion in cases that were pretty cut & dry says far less than the opinions that Roberts himself wrote.

I agree entirely that the LeMoyne College opinion and the AFL-CIO v. Chao dissent are each telling (the latter more so, as I will endeavor to explain). And I by no means would want to leave anyone with the misimpression that I think that Roberts is a wolly-headed socialist on labor matters. Just wanted to make sure the record is straight. (Indeed, if you look at a few of the other labor decisions, you'll see him voting with the majority *against* labor interests in a few other cases.)
But I can't subscribe to the notion that how Roberts voted on cases in which he did not author the court's opinion is less significant than opinions (other than dissents or concurrences) that he did author. You can't read too much into whether a judge pens the court's opinion in a particular case (especially in the case of a junior judge such as Roberts), as the decision to assign an opinion to a particular judge is made by the senior-most judge in the majority, generally on pragmatic grounds (equalizing the workload, for instance). It is undeniable that there are times when a particular judge's preference for writing in a particular case might enter into the assignent decision. and there certainly are judges whose expertise in certain areas will make it more likely that they will get the assignment. But in the main, I would caution against overinterpreting the fact of Roberts's authorship of any given majority opinion.
By the same token, the fact that Roberts went a particular way (good or bad) in cases in which he was not the authoring judge should not be discounted. In such a case, Roberts has not been simply a passive actor. What happens first is that the judges hold a conference in which cases are voted on and discussed. As the junior-most judge in many if not most panels, Roberts likely would have to cast his vote first, and prehaps briefly explain his reasons. Usually, the judges discuss each case and agree on the basic grounds for the decision (if there is consensus) or smoke out their differences. The senior-most judge in the majority then assigns the opinion. Next, each judge on the panel reviews the draft opinion circulated by the assigned judge. At that point, each judge who agrees either states his or her agreement or makes suggestions and comments seeking a revision.
The main point here is that authorship or non-authorship of majority opinions or unanimous opinions should not be considered an accurate index of intensity or non-intensity of beliefs. That said, concurrences stating different grounds for coming out the same way as the court or dissents disagreeing in whole or in part with the majority *do* merit close scrutiny. They are, first of all, not consensus products as to which other judges may have had influence, but rather show more of the unalloyed ideas of their authors. Second, and relatedly, such opinions tend to help indicate what kinds of issues the judge really cares about.

Sebastian raises an interesting issue. I won't belabor it here, since it is getting off topic. Suffice it to say that I'm inclined to agree -- certainly insofar as the notion that concurrances (and, I'd add, dissents) are more revealing than either authored-majority opinions or consensus votes; and tentatively insofar as authored opinions may not (contrary to my "intuitive" presumption in my earlier comment) be more revealing than consensus votes. (You can see why I washed out as an attorney and had to retreat to academia -- I'm far to willing to see the merit in other people's arguments!)

The real point, I suppose, is that most cases just aren't all that revealing of a particular judge's orientation. I recall hearing (though I can't vouch for the accuracy of the assertion) that, when Justice Ginsberg was on the DC Circuit, she voted along with Judge Bork in 90%+ of the instances where they were on a panel together. Superficially, this might indicate that there was only a dime's worth of difference between Bork and Ginsberg -- a proposition that even someone well to Ginsberg's left (e.g. me) would find rather silly. What it really means, I suppose, is that most of the cases that come before intermediate appellate courts aren't really all that controversial.

In any event, Sebastian (who has a way cool name!) has given me something interesting to think about in my studies of judicial decision-making.

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