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July 19, 2005

Zero tolerance: John G. Roberts' greatest hits

Supreme Court nominee John G. Roberts, Jr in Hedgepeth v. WMATA:

ROBERTS, Circuit Judge: No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

It was the start of another school year and the Washington Metropolitan Area Transit Authority (WMATA) was once again getting complaints about bad behavior by students using the Tenleytown/American University Metrorail station. In response WMATA embarked on a week-long undercover operation to enforce a ‘‘zero-tolerance’’ policy with respect to violations of certain ordinances, including one that makes it unlawful for any person to eat or drink in a Metrorail station. D.C. CODE § 35-251(b) (2001). ‘‘Zero tolerance’’ had more fateful consequences for children than for adults. Adults who violate § 35-251(b) typically receive a citation subjecting them to a fine of $10 to $50. Id. § 35-253. District of Columbia law, however, does not provide for the issuance of citations for non-traffic offenses to those under eighteen years of age. Instead, a minor who has committed what an officer has reasonable grounds to believe is a ‘‘delinquent act’’ ‘‘may be taken into custody.’’Id. § 16-2309(a)(2). Committing an offense under District of Columbia law, such as eating in a Metrorail station, constitutes a ‘‘delinquent act.’’ Id. § 16-2301(7). The upshot of all this is that zero-tolerance enforcement of § 35-251(b) entailed the arrest of every offending minor but not every offending adult.

Roberts concluded that the state sometimes has a legitimate interest in hauling children away for offenses that would net a grownup a ten dollar ticket.


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Some men just like to make little girls cry. Probably because the women have taken everything from us, even our vaunted libidos.

He is only 50, which was a principle criterion. But he is young enough to evolve like Souter did. This will not pan out as far to the right of O'Connor as the Republicans think.

But a fight must be had, just to set Bush, and the country up for a more moderate choice when Rehnquist retires. We should be able to win back some ground there since the replacement for Rehnquist will almost certainly NOT be to his right.

Hang in there John Paul Stevens! Just 3.5 years, and Hillary will be choosing your replacement.

Epi, that you think that admitting women have high libidos takes something away from men suddenly sheds light on your womanly emoting on the other thread. (Women are the emotional ones, you know.)

It's important not to equate the law with the man, at least in this case. In case it hadn't occurred to you (not saying it should have), the treatment of minors in our justice system is definitely not fair. Right now, in a different, much more liberal state, the juvenile son of a friend of mine is sitting in detention indefinitely for being delinquent while his brother was acquitted by a jury and is completely off the hook -- for the exact same conduct. There are reforms that could and should be made in the juvenile justice system, but don't blame one judge for this outcome.

I am NOT saying that we shouldn't go after the guy for lots of other reasons. I just don't think this particular decision sheds a lot of light on his thinking -- indeed, I can see many, much more liberal judges coming to the same decision (I worked for such a liberal judge).

Erm, that seems eminently reasonable to me. I don't know enough about the issues involved to give a definitive answer on whether it's right or wrong, but it is certainly plausible.

I think the decision sheds a lot of light on his thinking. He's arguing that the state should have almost total discretion to discriminate based on age. The alternative would be to argue that the state has to meet relatively strict criteria in order to justify treating minors differently, i.e., having to show that there's no alternative to age discrimination to accomplish some legitimate state interest. The protection and education of children is a legitimate state interest that can only be accomplished by identifying children and treating them differently in some relevant respect. Likewise, the state has a legitimate interest in specifically responding to the special needs of juvenile offenders (because they might be prevented from becoming adult offenders, because they have fewer legal rights to begin with, etc.).

I think the state should have to meet the strict scrutiny criterion for age discrimination and I don't think it's that hard to do for most of the age-based standards we care about.

Unfortunately, Lindsay, an associate judge on the D.C. Court of Appeals isn't particularly well-situated to change the prevailing legal standard, or unseat established law, because it might seem reasonable.

Whatever Roberts's de/merits, this particular case is hardly illustrative of anything. Most lawyers I work with were surprised the case wasn't thrown out on SJ.

I don't think admitting women have libidos as high as men takes anything away from men. Men are clearly a deficient form of woman, made for their reproducing pleasure.

Did you know that more than 90% of the DNA in your body comes from your mother. Even higher if you are a guy. There are 23 different chromosomes in our nuclei. But when the sperm arrives at the egg, it is like a dying man to a fully stocked house. The egg (the largest cell in the human body, visible with the naked eye) is chock full of all the machinery that makes a cell home: endoplasmic reticulum, golgi, and especailly mitochondria. The intersting thing about mitochondria are that they have their OWN non-nuclear genome. It is small, amounting to only about 3% of the genome of the nucleus. Except each cell has one nucleus, and there are about 1000 mitochondria per cell. That means there is more than ten times as much mitochondrial DNA in each cell. And since over 90% of the energy in the cell comes from the mitochondria, it is widely believed that when the precursor of the mitochondria invaded the prcursor of the eukaryotic cell, it allowed life to become multicellular.

So half your nuclear genome came from your mother, and 100% of the mitochondrial DNA. That comes to more than 95%. We are our mothers, far more than our fathers. It is this fact which also means that dolly the sheep, and cc: the cat were not clones (Dolly was created by taking the nucleus out of one of her mother's udder cells, punching the nucleus out of a donor egg and putting in Dolly's mother's DNA. Of course this leaves 90% of the DNA coming from a third sheep in the remaining mitochondria, not Dolly's grandparents). Think this doesn't make a difference. The scientists know. They don't call it cloning, they call it intracytoplasmic nuclear transfer. And that doesn't even touch effect of gamete nuclear imprinting. No clones have ever been made of an animal more complex than a turkey.

Also, the general trend is to give minors additional considerations or protections based on their youth, not to take them away. This decision basically says the state can treat minors in ways that would clearly constitute egregious violations of their rights if they were adults. I think that's a significant difference.

Giving a minor a more lenient sentence is not a violation of any of her protected constitutional rights (especially if doing so serves a legitimate state interest that could only be accomplished by having a juvenile justice system). Whereas there's a specific Fourth Amendment right to be free of unreasonable searches and seizures that shouldn't be casually overridden because of a citizen's age. The Constitution is very clear that unreasonable searches and seizures are intrinsically bad and that the state shouldn't be inflicting them on anyone.

Geez, Epistemology, that's all facinating and everything, but why don't you take it back to the other thread? There's no reason for you to spill your seed all over this one, too.

Where's the unreasonable search and seizure here? I don't see it.

Are you saying that you think arresting, handcuffing, and detaining someone for three hours for eating a french fry is reasonable? Or do you just not understand what a "seizure" is under the law, and would be better off not commenting?

Erm, unreasonable search and seizure has been understood for, well, forever, as a statement about the rules of evidence. As in, it forbids mandatory daily strip searches and the police kicking down your door because they just don't like you. Not unreasonable as in "the law is just fucking goofy."

Yes John Robert is conservative, more so than Justice O'Connor, and he is a sure vote for overturning Roe vs Wade (did someone say rove v plame?), but he ain't your backwood daddy's blue state conservative.

He may be anti-Roe vs. Wade, on a state's rights platform, but that cuts two ways. And has anyone asked about John Robert's Intellectual Property Rights viewpoint?

I see nothing in him that wouldn't portend a pro-medical marijuana stance, or a pro Oregon right-to-die law ruling.

And we need the harmony on this one, to contrast it to the next. An ungodly uproar arises next time. And we get a nominee like John Robert to replace Rehnquist. And Roberts is better than Rhenquist. A net gain.

Roberts more conservative than O'Connor.
The next will be more liberal than Rehnquist.
Not what they hoped.

Don't screw this fight up, the Supreme Court is powerless to the money, the Presidency is the prize. Keep your eyes on it in this fight.

After Rehnquist, Hillary will make the next three Supreme Court picks.

I think there's something to the Fourth Amendment argument. I'll defer to Glenn on how the Fourth has traditionally been interpreted. I always thought that the intent went beyond standards of evidence. It's about the right of the people to be secure in their persons, etc., etc.--i.e., secure from unreasonable intrusion in the name of law enforcement. It's not just that you have the right to privacy or the integrity of the person until a court says that the police can search you. I would argue that there are just certain things that the state shouldn't authorize the cops to do, even while enforcing the law with probable cause.

The plaintiff in this case made a rather subtle and compelling appeal to the Fourth Amendment. She cited a case called Atwater in which a woman argued, ultimately unsuccessfully, that it a police officer violated her Fourth Amendment rights when he chose to arrest her rather than give her a citation for not wearing her seat belt. In that case, the court agreed that she had a pretty good point about whether local common law allowed the police to drag you off in hand cuffs for petty crimes. (Probably not.) On the other hand, the court didn't feel comfortable siding with the seat belt scofflaw because they didn't want to infringe on the discretion of the arresting officer to choose either a citation or an arrest depending on the circumstances.

However, in the WMTA french fry case, the arresting officer didn't have discretion because he was acting on a zero-tolerance law. So, the plaintiff argued, local common law about reasonable law enforcement could prevail without threatening police discretion to enforce the law.

My point isn't that he is neccesarily correct--I'm not a lawyer. I'm just saying that his opinion is *plausible*. Your post, at a glance, seemed to be painting this as a terrible miscarriage of justice--"Roberts concluded that the state sometimes has a legitimate interest in hauling children away for offenses that would net a grownup a ten dollar ticket." To merit that sort of incredulous response generally requires that the opinion not only be something you disagree with, but that it is also completely nuts. Roberts may be wrong, he may be right, but either way he certainly seems reasonable.

I don't know... It depends on what conclusions you want to draw from a criticism of a judge or an opinion. If I wanted to explicitly argue that this opinion proved that Rogers was a bad judge or unqualified to be a Supreme Court Justice, then I'd have to show that his opinion was obviously wrong. That's not what I'm saying. If we held to that standard in philosophical argument, we'd never argue at all. The default assumption is that your opponent has at least some good reasons to argue as he does. Allowing that the opposition has some merit doesn't preclude criticism.

I just think it's worth noting that someone who's probably going to be in a position to interpret the Constitution believes that the state has virtually unlimited discretion with regard to age discrimination.

But Glenn:

"Roberts concluded that the state sometimes has a legitimate interest in hauling children away for offenses that would net a grownup a ten dollar ticket."

That's not an "incredulous response," that is in fact exactly what Roberts concluded.

"That's not an "incredulous response," that is in fact exactly what Roberts concluded."

Those aren't mutually exclusive. For example, if Roberts had an opinion declaring the hokey pokey unconstitutional and Lindsay posted "Is he telling me I can't do the hokey pokey, even though that’s what it's all about?" that response would be both incredulous and exactly what Roberts concluded.

More generally, my point is that, in your original post, you didn't offer substantive criticism. Posts of the format "Long quote, then a couple sentences of incredulity and or snark" should be reserved for cases where the content of the quote is prima facia bonkers, where there is absolutely no way it merits a substantive response. In this case, even if Roberts is wrong, it's on a fairly narrow, technical legal question. It is not at all obvious that he concluded anything like "Roberts concluded that the state sometimes has a legitimate interest in hauling children away for offenses that would net a grownup a ten dollar ticket.", because the only thing under his consideration was "whether they violated the Fourth and Fifth Amendments to the Constitution." If you want to make the case that he still did something wrong, you actually have to lay out a serious argument.

the issue in this case wasn't whether the individual arrest of the child was reasonable, it was whether the law in general - or more precisely, the way the law distinguishes between treatment of minors and adults - could be considered "reasonably tailored to a legitimate state interest." the child asserted that the law violated equal protection by distinguishing between adults and children.

under current supreme court precedent, only certain "suspect" distinctions get "strict scrutiny" in equal protection cases. namely, a law that distinguishes by race or nationality gets strict scrutiny (gender distinctions get what is known as intermediate scrutiny). so if a law says blacks get longer sentences than whites for the same crime, that will violate equal protection. but a law that says repeat offenders get longer sentences than first time offenders won't get much equal protection review at all.

the reason for this easy-to-pass test is i think a good one: every law makes distinctions between people, and we don't want courts having to consider the constitutionality of every law on the basis that the distinctions it draws violate equal protection. at any rate, the "rational basis review" test which applies to a law that distinguishes between minors and adults is incredibly easy to pass, and virtually no law, no matter how dumb, fails it.

this is why the decision you cite here was unanimous, despite the incredibly absurd facts of the arrest of the 14 year old. long story short, this case really does not prove roberts to be a wacko conservative.

it is also true that the girl made a search and seizure argument, but that would be a hard argument to win given that she did in fact violate the (albeit silly) law in question. it can't be an unlawful seizure if you are being arrested with probable cause that you committed a crime, and the fact that the crime is dumb doesn't make the seizure illegal.

She was arguing that a search and seizure can be an unreasonable even when there's probable cause--i.e. that methods used in search and seizure were unreasonably intrusive despite the fact that the officer had probable cause to perform some kind of search or seizure. It seems like an unreasonably narrow definition of "reasonable" to say that reasonable searches are simply those undertaken on the basis of probable cause.

I'm not a lawyer, but I am a progressive, I voted for John Kerry, and I think abortions should remain legal. That said, I've read this decision and I don't see a Fourth Amendment claim here. I think this was a case of bad law on several counts, but unfortunately, not unconstitutional. I think the law against eating or drinking in a Metro station is ill-considered, and the "zero tolerance" week was even worse. Police officers exercise personal discretion all the time when deciding whether to make an arrest, to the point where they often let conceded violations go with just a warning. Most reasonable people would agree that a 12-year-old eating a single french fry is not the kind of offense that demands arrest, even though it's a technical violation of the law. That's what makes zero tolerance policies so horrible-- there are always reasonable exceptions that don't justify the full force of the law. The no-citation rule for minors had an unintended effect in this case, and as a direct response, the law was changed so that minors can simply be issued a written warning. Roberts acknowledges all of these points in his decision. That doesn't mean I have to support him, however.

I think it's time to start reviewing reasons why Roe v. Wade should be upheld, and to remember that we may not be done after Rehnquist. John Paul Stevens is 85 years old, and will be 88 by the time we have a new president.

***if Roberts had an opinion declaring the hokey pokey unconstitutional and Lindsay posted "Is he telling me I can't do the hokey pokey, even though that’s what it's all about?" that response would be both incredulous and exactly what Roberts concluded.***

(One of the best laughs I've had in days. A side thought...if one thinks he has superior logical abilities, he ought to take the LSAT. I understand from one of my kids who is a lawyer that it is a humbling experience.)

Other best laugh I've had in days can be found at:

Lindsay, I've been learning a whole lot more than I wanted to know about the juvenile justice system in the last six months, and let's just say that it has been the law for some time now that juveniles have far fewer rights than adults, and generally this has been accepted as constitutional because the consequences for the juvenile are not considered to be punitive, but rather remedial. Obviously, this is a way too simplistic view, and changes would be welcome, but as I said above, there are a lot of liberal judges who would have ruled the same way in this case because the prevailing legal norms as applied to juveniles are frequently different. If there is a trend away from this please let me know how to press it because it is of urgent importance to my friend's son. In this case, what is needed is legal reform -- there are better things to attack Judge Roberts with.

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