I can't say I'm thrilled with the Roberts nomination, but we shall see...

There's a curious decision from Robert's tenure as appellate court judge in DC that may give some indication about his views -- Hedgepeth v. Washington Metropolitan Area Transit Authority:

To quote Robert's decision:

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.

One of the arguments of the plaintiffs against the WMTAA was that the arrest violated equal protection statutes, because adults caught during the same undercover operation were only given citations and were not arrested.

Roberts rejected that argument:

Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name — an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children. The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen — detention until the parent is notified and retrieves the child — certainly does that, in a way issuing a citation might not. The district court had and we too may have thoughts on the wisdom of this policy choice — it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears — but it is not our place to second-guess such legislative judgments.

Roberts concludes that the WMTAA's zero tolerance policy regarding eating on the Metro and arrest of a minor for breaking this policy was not "unreasonable" under the 4th Ammendement:

Her claim that a policy of mandatory arrest for certain minor offenses is unconstitutional boils down to an assertion that officer discretion is a necessary element of a valid seizure under the Fourth Amendment, at least for some minor offenses. She has not made an effort to defend that assertion under the usual first step of any analysis of whether particular government action violates the Fourth Amendment — asking "whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed."

In other words, because the minor's arrest would not have been considered unreasonable when the 4th Ammendment was written, it is not unreasonable now.

I suspect that this case will come up during the confirmation process, because, well, a girl was dragged away in handcuffs for eating a french fry.

Greetings Szdfan,

Thank you for the input. This actually made me feel even better about Roberts as it supports his reputation as a judge who sees his role as enforcing the law, not creating new law or overturning bad law. As you quoted Roberts 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.

This is the heart of the conservative legal position. It is the job of the legislature to legislate (pass laws). It is the job of justices to enforce the Constitution first and then other laws as passed by the Legislation second. It is not the job of justices to determine what laws are bad ideas (at least in their opinions), what laws are good ideas, and what laws are needed and thus should be created by justices.

Do you disagree?