« Youngest ID Theft Victim? | Main | Victims and Prosecutors: A Worrisome Alliance »

Wednesday, July 20, 2005

Jeez, you don't see a guy for a month or so...

and the next thing you know, you're reading in the NYT about how your old law school buddy is tasked with shepherding the SCOTUS nominee through the process on behalf of Ethan's absolutely favorite Senator, John Cornyn.  Congrats on the new job Fitzie.  Looks like with the Roberts nomination, you'll have it relatively easy.

Posted by Administrators on July 20, 2005 at 10:49 AM in Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Jeez, you don't see a guy for a month or so...:


BW: I don't think the line-drawing debate over where judges interpret the constitution and where they remake it is going to be resolved ever.

I tend to take a radical pro-remaking view for two fundamental reasons:

1) Ultimate power always lies with the people. The flag-burning thing shows this (as much as it horrifies me, makes me sick for the future of our country). If the people really disagree with the Supreme Court's view that free speech includes burning flags, they can make it absolutely clear by amending the constitution, and they're trying to do so. If judges still refuse to go along (which IMHO would be ethically permissible civil disobedience), they can be impeached. The courts don't destroy democracy by making decisions, they simply demand that democracy make it clear that it really really wants the thing decided against.

2) I care about individual consciences. Without going into deep theory here (give it time...), I think that there's a human right to not be a part of a decision that you genuinely believe is unjust, and I think that right extends to judges as well as to the rest of us. (Cf. above re: civil disobedience.) I also think that when we (or "they" meaning judges) externalize the decisions we have to make to some nonexistent entity like law (and I mean "nonexistent" in this sense to mean "not in being[-in-itself] as a fact in the same way stones and bodies and oceans and stars are") and thereby suppress our own consciences, we commit an act of dishonesty. Now, this doesn't mean erasing law or democracy. Our conscience might, 99% of the time, command us to respect the freely chosen laws of the people. But that 1% of the time, when our conscience rebels against a law, I think we're duty bound by our own faithfulness to ourselves, to, depending on our status as citizens or judges, disobey it or strike it down.

I don't necessarily think that Judge Roberts decision in the french fry case that his conscientious (spell-checker, spell-checker, my kingdom for a spell-checker!) serving of the people outweighted his conscientious serving of justice makes him a bad person. But it makes me a little leery.

Posted by: Paul Gowder | Jul 22, 2005 12:06:11 PM

I can certainly understand your exhaustion, but I don't think we need to venture into the depths of Bickel and Frankfurter in order to debate whether every policy that a judge doesn't find cogenial to his or her views about good governance should therefore be declared unconstitutional. I take your point about the Constitution's glittering generalities, but that can't mean that judges simply have unbridled discretion to remake the document in their own images.

To make this more concrete: I don't think it's desirable for D.C to ban food on the Metro (after all, that's not done in other subway systems and it sure would be nice to have a sip or two of water while you're waiting for the train). But surely it can't be that, if I were put on the federal bench, it would be appropriate for me to strike down the policy as unreasonable. So too with arresting all minors who violate that policy. Not a great idea perhaps, but I think we agree that there are reasons for adopting a zero tolerance approach, especially, as here, where it was done as temporary experiment. It produced bad publicity for the city, and quite an ordeal for at least one kid, but did that make it unconstitutional? In any event, is it fair to conclude that Judge Roberts is a bad person (or at least a bad judge, unfit for service on the Supreme Court) merely because he didn't think so?

Posted by: bw | Jul 22, 2005 11:22:20 AM

BW: perhaps I don't understand your point. I've shown how the results of policy (1) and policy (2) combined are not rationally related to the legitimate government interest that the results of policy (1) and the results of policy (2) taken separately would serve. What more do you think I need to show? Do you want to separate the policies from their irrational results? If so, I'm not sure how it's possible to show any policy, qua policy, is unreasonable: the rationality of a policy ought to be tested at least in part based on whether its results can be expected to correspond to its aims. If you're asking for some other kind of proof, please clarify and I'll try to make it.

As for the "whatever I consider undesirable is ipso facto unreasonable (and unconstitional to boot)." problem -- I really don't need another debate on the countermajoritarian problem :-) -- so I'm just going to assert the position that (a) the constitution uses the term "unreasonable" (as well as "cruel," "unusual," "due," etc.) at least once (albeit not in the EPC), and someone's gotta give meaning to it. Since it's the job of the Court to enforce the constitution, the duty falls to them. I know that's not a complete or wholly convincing argument, but, like I said, I really don't have the strength for another countermajoritarian go-around right now.

Posted by: Paul Gowder | Jul 22, 2005 12:14:23 AM

Not to belabor the point, but what you've done is simply to confirm what I said before: that although you may have shown the irrationality of one of the policies, you haven't demonstrated that two valid policies combine to make an irrational one. At any rate, I don't want to get hung up on this, because I think your analogy doesn't quite work applied to Hedgepeth.

I take it that your point there would be that although it may be reasonable in some circumstances to have a policy of not giving citations to minors, that policy becomes irrational when the police lose their discretion to overlook crimes committed in their presence. But why should this be so? If the City has valid reason for not issuing citations to minors and arresting them instead, I don't see why those reasons become invalid merely other policies (which I think you concede are rational) mean that more arrests will be made. In any event, once you've accepted the general validity of a no-citation-for-minors policy, you've accepted that the choice is between arresting kids for openly engaging in minor criminal offenses and simply ignoring them. And it doesn't seem irrational to me (though it is certainly uncharitable and, to my way of thinking, undesirable) to require the police not to look the other way. Maybe I'm all hard edges and ruthless discrimination, but I'm not sure why I get to say that whatever I consider undesirable is ipso facto unreasonable (and unconstitional to boot).

Posted by: bw | Jul 21, 2005 10:51:01 PM

context, not contest.

Posted by: Paul Gowder | Jul 21, 2005 11:40:42 AM

BW: I agree with you up to your last sentence. I agree, that "such people are highly unlikely to be smugglers" undermines the rationality of policy (2) -- but it only undermines that rationality in the contest of the class of people who are being arrested. Policy 2 is perfectly rational in our current-world policing paradigm, where the cops mostly arrest people for drugs and violence. It's rational to believe that violent and drug criminals might have contraband, so a body-cavity-search policy would be rational.

When we add policy (1) to the mix, however, the pool of arrestees changes: it's now a bunch of speeders who are being arrested, and there's no reason to believe they're going to have contraband, so the presence of policy (1) is what makes policy (2) irrational.

Posted by: Paul Gowder | Jul 21, 2005 11:40:07 AM

Paul: I'm not sure I agree. Why is it reasonable to do full-body cavity searches of all arrestees without individualized suspicion? I don't know that it is, but if you think so, it's presumably because of the overriding interest in preventing dangerous contraband (weapons and drugs) from getting into jails and the impossibility of figuring out which arrestees are most likely to be smuggling such items. If that's a valid argument (and I have my doubts), then why wouldn't it be reasonable to apply such a blanket rule even to those who have committed very minor crimes? If your answer is that, well, such people are highly unlikely to be smugglers, then what I think you've done is merely to undermine the rationality of policy (2). But I don't think you've shown that two rational policies add up to an irrational one.

Posted by: bw | Jul 21, 2005 10:57:53 AM

BW: the whole is more than the sum of its parts: two rational policies can easily make an irrational policy.

For example, suppose the state decided to arrest all speeders. Fine. Mean, but arguably rational. Now suppose the state decided to do full body cavity searches of all arrestees. Again, fine, arguably rational.

But is it arguably rational to do full body cavity searches of all speeders?

Posted by: Paul Gowder | Jul 21, 2005 9:29:06 AM

"In terms of your rational basis, that might be a basis for zero-tolerance laws in general, but is it a basis for the distinction between children and adults? After all, wouldn't the state's arguments equally well apply to first-time adult minor offenders?"

I'd just like to point out that, at the time of Ansche's arrest, D.C. was in fact applying its zero-tolerance policy to both children and adults. The opinion (at the top of page 3) makes this quite clear. So, if you (Paul) accept the rationality of (1) a zero-tolerance policy that applies to adults and children alike and (2) a policy of not giving citations to minors (as I read your initial post as accepting), it seems to me that you've conceded away the entire equal protection claim. For if both (1) and (2) are rational, I fail to see why the necessary consequence of putting (1) and (2) together is not.

Posted by: bw | Jul 20, 2005 10:15:33 PM

Well, this statement illustrates why further argument would be fruitless: "But I don't necessarily think such a statement necessarily implies sympathy, especially when followed up with that fairly snide statement about it not being the court's job to decide the question."

The "fairly snide statement" was: "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." In other words, couching an opinion in legal terms is snide. We'll have to agree to disagree.

I think you're a legal nihilist, you think you're a legal realist. Tomato, tomahto, it's been fun.

Posted by: Mike | Jul 20, 2005 5:48:07 PM

Mike: I'll give you that. It's a very good statement of facts. (Although not as good as some of my complaints in police brutality cases, which read like Dashiell Hammett novels.) But I don't necessarily think such a statement necessarily implies sympathy, especially when followed up with that fairly snide statement about it not being the court's job to decide the question. In fact, my charge of lack of compassion is supported even more by his statement that "the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry." That statement suggests that the idiocy in the policy didn't come from the fact of the harshness, but from the fact that it made a young girl cry, and the public, always manipulable by crying young girls, wimpering puppies, etc., reacted accordingly.

Posted by: Paul Gowder | Jul 20, 2005 5:13:44 PM

But counsel, wouldn't your "budget" argument gut the equal protection clause of any meaning, since the government could defend any distinction whatsoever on the basis that it needs to choose a sub-class of the whole population in order to save enforcement dollars? It seems to me that this would mean that every distinction would meet a rational basis test.

Your "children are the future" argument is interesting. To the extent your "study after study" exist, you might be right. Of course, if your study after study doesn't exist, I think I have to follow the court in Cleburne in rejecting justifications based on myth or pure speculation...

Maybe if Judge Roberts had made that point -- or even given any indication of considering the full scope of the policy -- his opinion might be more justifiable. I'd still strongly disagree on policy grounds, strongly disagree on compassion grounds, and I'd strongly disagree with the result of the case to the extent that I think that the rational basis caselaw is wrong, but I'd give him credit for compliance with the law. This discussion, however, is enough to suggest that judge Roberts, if he were interest in compassion, could have come out the other way. As we both know, legal arguments, especially on the bounds of the equal protection clause and similar provisions, are hardly determinate, and a court could easily in good faith accept my arguments without having to step into civil disobedience territory.

Interestingly, an English court has just struck down a curfew on fifteen-year-olds. (The "High Court" is actually the third-highest court, below the Court of Appeal and the Lords, afaik.)

Posted by: Paul Gowder | Jul 20, 2005 5:04:39 PM

One more quick point, before I get off my shiny ass steel ass and finish a brief (for the plaintiff, natch). You like policy discussions, and this post was about Roberts, let's combine the two. Robert's led with:

"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."

Let's put aside the fact that Judge Roberts consider the policy policy foolish, and was not happy about the arrest. That's a damned sympathetic statement of the facts. If I had been the plaintiffs' lawyer, I would have been in self-awe if I had stated my cause so beautifully. Only someone who really felt the policy was crummy would have written those facts. You know it, I know it, and anyone who's ever done an appeal knows it. Indeed, I am going to re-write my own statement of facts in light of that opening paragraph.

Posted by: Mike | Jul 20, 2005 5:02:29 PM

Mr. Gowder, well, in this post, Judge Gowder:

"You are indeed correct that a zero tolerance policy might deter adult criminal activity. But the city has scarce resources. And it determined that those resources could be more efficiently allocated, that is, could prevent more future crimes, by applying the zero tolerance to juvenile offenders alone. This policy determination must stand unless there is no conceivable basis for it. It is not enough that the law might be underinclusive.

"Even though D.C. must meet only the lowest thresholds to pass rational basis review, and even though the law doesn't require us to present any evidence, we do note that study after study has shown that after a person has reached a certain age, it's hard to reform them. This is why childcare is so important. When people say the children our the future, they are correct. If we don't ensure that our children do not become criminals today, then we will have no future. Character is formed early. Here, D.C. wanted to use measures (which, as we agree, might be harsh) to teach children not to commit crimes - even 'small' crimes. The law must be followed. Because the children are the future, and because they are the most fertile ground for reform, in targeting young persons, the city will ultimately prevent more future crimes. There is no doubt that crime prevention is a legitimate interest.

"Moreover, as you know, age is not a suspect classification. Perhaps it should be, but then again, that would cause problems for a lot of anti-discrimination legislation. Would the 40-year cut-off for ADEA cases pass this higher level of scrutiny? Why 40 instead of 30 or 50? Because it's difficult to draw lines based on age, the Supreme Court and lower courts defer to legislative bodies. Indeed, the need for deference is so great that laws must only meet a rational basis.

"In any event, it's up to the Supreme Court to change the law. As it stands, the law passes rational basis review because it advances (though perhaps imperfectly) D.C.'s legitimate interest in preventing more future crimes and in putting kids on the right track by scaring them straight.

Posted by: Mike | Jul 20, 2005 4:48:45 PM

mike, our comments crossed wires, so I didn't see your rational basis before advancing my duh argument.

In terms of your rational basis, that might be a basis for zero-tolerance laws in general, but is it a basis for the distinction between children and adults? After all, wouldn't the state's arguments equally well apply to first-time adult minor offenders?

Posted by: Paul Gowder | Jul 20, 2005 4:25:55 PM

In terms of burden shifting, I have long thought that all is not as it appears in the rational basis department. It is impossible -- simply impossible -- for a plaintiff to affirmatively negate every concievable state interest justifying a law (which is I think the standard announced in heller v. doe, though that might have been substantive due process -- I forget). To do so would require not only proving a negative -- difficult enough as it is -- but proving a normative negative. The plaintiff would, as a logical matter, have to prove some fact inconsistent with there being any legitimate state interest relating to the action at hand, and it's not clear what such a fact would be. For example, merely proving malicious intent wouldn't be enough, because the rational justification doesn't have to be the one that was actually contemplated by the state when enacted (as I dimly recall from some case).

The fact that plaintiffs have won rational basis cases (Cleburne comes to mind) indicates that that is not in fact the standard, inflamed language in judicial opinions notwithstanding. (Cleburne is still good law, after all.)

A few hypotheticals should make clear how impossible it is for any plaintiff to ever win any rational basis case. Suppose the district of Columbia passed a law requiring blind people to wear florescent orange top hats whenever out on the public street, and civilly committing any blind person who does not do so "for their own safety". Since blindness, a disability, gets rational basis scrutiny (there's Cleburne again), the plaintiff challenging this law has to negate, for example, the justification that this law is actually a public safety measure to prevent blind people from being hit by automobiles. Perhaps that does justify the fact of the statute, civil committment? Fine, but how would a plaintiff in such a case show it was irrational? After all, it's "not punishment," or so the district of columbia would undoubtedly argue in the face of an 8th amendment claim, so we're left with rational basis tests for either SDP or EPC claims.

Isn't your instinct to just say "oh, but that's plainly irrational and improper?!" Is that burden-shifting? Yet wouldn't any court (except, perhaps, the 4th circuit) find such a statute to be entirely unconstitutional? What would the plaintiff have said to meet their burden to conclusively refute the rationality of such a statute, beyond "duh?"

After all, the "duh" argument was pretty much what the Court accepted in Cleburne. It didn't affirmatively hold that there was no possible way that the zoning restrictions on homes for the disabled at issue there could concievably be rationally related to any imaginable state policy. It considered those state policies that the state advanced to defend the policy and rejected them as stupid (or as "vague, undifferentiated fears"). It didn't go into imaginary reasons and require the plaintiff to negate them: "suppose space aliens came from mars and tried to use homes for the mentally retarded as part of their plan for world domination -- prove the policy isn't related to that interest!"

So with that lengthy defense of the duh argument, I'll offer you the duh argument. On its face, a law that requires police officers to arrest every minor for every minor crime is patently dumb, because it divests the officer of any discretion to not cause untold harm to a child for something that is utterly di minimis. This "duh" argument ought to be enough to shift the burden of production (loosely used) to the state: the state should have to come up with reasons for its behavior (if we're to follow Cleburne), although the ultimate burden of persuasion rests on the plaintiff.

The only justification ever asserted by anyone is that citing minors is ineffective for the state interest of involving parents in the discipline of their children (this is what Roberts uses). That justification doesn't apply to mandatory arrest policies, however, because the state doesn't have a legitimate interest in coercing parental involvement in every single minor offense without any official discretion whatsoever. The state's interest in "correction of straying youth" is not served by mandatory youth-arrest policies for nothing "crimes." Really, the state doesn't have a legitimate interest in zero-tolerance policies for minor offenses, but there's no direct constitiional challenge to a zero-tolerance policy for a minor offense. There is one, when that zero tolerance policy impacts different classes of citizens unequally.

(by the way: Apology accepted. :-) My comments on blog posts are generally devoid of legal analysis because I do quite enough legal analysis for a living and ethical and policy questions are much more interesting, in my opinion)

Posted by: Paul Gowder | Jul 20, 2005 4:22:50 PM

"But I defy you to justify the combined policy: one that requires that minors, and minors only, be arrested every single time a police officer sees them violating a minor ordinance, with reference to a legitimate state interest."

I'll quickly provide a rational basis for this law before bowing out - unless you refute my arguments. If I'm the lawyer for the city, I'd argue:

"Judge Gowder, there are two policies at issue, and we're looking at them in conjunction. But we can describe the issue as: Does the zero tolerance policy that requires a lawbreaker who is under 16 to be arrested pass the rational basis test?

"The city has a rational basis in stopping criminal activity when minors are young. Nip it at the bud. This program is designed to scare them straight. It's to show them that if you break the law, there will be severe consequences.

"It's also to show that there's no favorable treatment given. We've all herad people say, 'But he was speeding, why didn't you get him?!' Or, 'If I were the mayor's son, I would not have been arrested.' Well, under this law, even the mayor's son would be arrested. The law might be a bit harsh, but it's applied uniformly and fairly.

"Now, some might say arresting them is a bit harsh. They might be right. We'll admit that reasonable minds can differ on this point. But the city concluded that it's better to be a little tough now. The city also concluded that crime is a slippery slope, it's a gateway type thing. Stop kids from sliding down that slope.

"More importantly, under the rational basis test, the city could have rationally concluded any of the above. Like I said, reasonable people can reach different results. Given that, this law meets rational basis scrutiny.

Posted by: Mike | Jul 20, 2005 3:57:30 PM

"But I defy you to justify the combined policy: one that requires that minors, and minors only, be arrested every single time a police officer sees them violating a minor ordinance, with reference to a legitimate state interest."

Mr. Gowder: This is impermissible burden shifting. Under modern constitutional law, the burden is on the person opposing some law to prove that it's unconstitutional. To be clear, I disagree with the placing of burdens. But that's the law. You have not met your burden. You have not shown why there was no rational basis for the policy.

Now, things seem to be getting somewhat personal. If I took a cheap shot, then I apologize. And I would love to hear your argument why the law lacks a rational basis based on our current understanding of the rational basis test. D.C.'s law was stupid, and, indeed, appalling. But lots of stupid and appalling laws withstand rational basis review. Why should this one fail?

Posted by: Mike | Jul 20, 2005 3:42:22 PM

Ooooh, the Lochner monster returns from the depths. There ought to be a version of Godwin's law for legal discussions: instead of Hitlering a thread, we could speak of Lochnering a thread.

Apparently, by "Lochneresq rational basis standard" you mean "rational basis standard that means something other than permit everything."

What you are missing once again is the combination of policies. Now you're analyzing the zero tolerance policy alone. A zero tolerance policy might be rationally related to a legitimate state interest. A no ticketing of minors policy might be rationally related to a legitimate state interest.

But I defy you to justify the combined policy: one that requires that minors, and minors only, be arrested every single time a police officer sees them violating a minor ordinance, with reference to a legitimate state interest.

Why not actually look at the policy that was at issue in the case?

Posted by: Paul Gowder | Jul 20, 2005 3:33:11 PM

Well, I commented last night at Balkinization, and noted the EPC claim, so I feel pretty secure in my lawerlyness.

Anyhow, one thing your wrote sticks out: "The D.C. circuit in the french fry case could have easily found that a combination of policies that amounted to mandatory arrest for french-fry eating violated a rational basis standard."

How does D.C.'s policy violate the rational basis test? Does the government have a legitimate interest in a zero tolerance policy? Sure - it prevents arbitrary and discretionary enforcement. No one can say, "But you didn't arrest him!" Everyone caught breaking the law receives equal treatment, in this case, an arrest. Is the law rationally related to this interest? Is arresting someone rationally related to this interest in equal enforcement of the laws? Again, yes, at least under a current understanding of the rational basis test.

What am I missing? Have I misstated rational basis scrutiny? Or should Roberts have used a Lochneresq rational basis standard in this case?

Posted by: Mike | Jul 20, 2005 3:23:12 PM

Mike: for one, there were two claims in the french fry case rather than one. Which I suppose means I'd be justified in asking if you're a lawyer in an admittedly rude tone of web-voice, since you seem to be incapable of distinguishing a fourth amendment claim from an equal protection clause claim. But I'm not going to do that. And yes, I am a lawyer.

Atwater didn't consider an equal protection clause claim, but only a fourth amendment claim. The D.C. circuit in the french fry case could have easily found that a combination of policies that amounted to mandatory arrest for french-fry eating violated a rational basis standard. However, because it focused, for equal protection purposes, only on the policy barring giving of citations to children, and did not (although it claimed it did) examine that policy in the context of the zero-tolerance policy for french fries, it failed to fully analyze the epc claim. There is a difference between assertion (a) "a policy forbidding police from giving citations to kids and forcing them to choose between overlooking violations and arresting them is rationally related to the legitimate state interest of ensuring enforcebaility of the laws against the young," which is certainly true, and which the court defended, and assertion (b) "a combination of policies absolutely requiring the police to undertake a custodial arrest in all cases where kids violate certain laws is rationally related to that same legitimate state interest," which is what would have been required for the court to reach the result it did. If you re-read (I'm giving you the benefit of the doubt with the "re") the bottom of page 12 and the top of page 13 of the pdf version, you'll see the error Roberts made just as I've described it. The "no-citation policy for minors" was not at issue. The combination of the zero-tolerance and the no-citation policies were.

In terms of the fourth amendment claim, I regretfully agree that it's foreclosed by Atwater, although I think Atwater is wrong and idiotic in the sense that the Constitution explicitly imposes a reasonableness requirement on each individual arrest and the Court explicitly refused... well, just see O'Connor's dissent.

Posted by: Paul Gowder | Jul 20, 2005 3:11:33 PM

How can I say this without sounding rude? Mr. Gowder, are you a lawyer? (I tried looking you up at Paultopia, but that site seems down.) I ask not to be a jerk, but because your comments seem devoid of any legal analysis. If you're not a lawyer, I'll gladly explain why Atwater demanded the outcome of the D.C. french fry case.

I hated Atwater, and I hated the french fry case. (FWIW, I've never worked on a criminal case for the prosecution, and never a civil case for the defense, so my "compassionate" bona fides seem in order.) But what's a lower court to do - ignore the Supreme Court?

Anyhow, if you are a lawyer, please explain why Atwater did not determine the french fry case's outcome.

Posted by: Mike | Jul 20, 2005 2:21:18 PM

Oh, while we're at it, this opinion, while legally correct, suggests a marked disregard for the intuitive side of human life. The district judge -- even if we might disagree with his decision -- deserves respect for standing up and refusing to be an "instrument of injustice" under his values. Instead, Roberts contrasted the district judge's opinion with "some good faith effort by the district judge to apply the Guidelines in the first place," and asserted that the district judge was "intent on defying" the law even as he acknowledged two provisions of the guidelines that, if appropriately stated by the district judge, would have permitted a downward departure just as given.

Posted by: Paul Gowder | Jul 20, 2005 1:32:33 PM

Alas, the grim absence of evidence for anything connected to this fellow (which lends some validity to my prior prediction that Bush would duck under the radar screen, albeit not so far under the radar screen as I'd guessed) is itself a problem and a strategy, as we all well know.

In terms of humanization, I offer up Kim Lane Scheppele's remarks as critiqued by Ethan a couple posts ago. I think you know my opinion on courts standing quietly by while the state exercises its seemingly infinite capacity for bloody-minded cruelty, and views of the constitution (especially when interpreting vague words like "reasonable" and "cruel" and all the rest) that permit or require a judge to say -- in a tone of infinite condescension -- "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" when confronting the situation where "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."

And then there's this, which Roberts didn't write but did join, which basically held that the president can do whatever he pleases to people that our soldiers pick up overseas, and does so in an intensely sloppy fashion: it first rules that the geneva conventions don't apply, then rules that even if they did apply, Hamdan wouldn't be covered under them because he wasn't a prisoner of war, and even if he was a prisoner of war, Al Qaeda wasn't a proper state, and even if it was, the president can interpret the geneva conventions any damn way he pleases, and even if he couldn't, comity would somehow require the federal courts to defer to some military tribunal. So much for courts just deciding the dispositive issues and not cluttering up their opinions with meaningless and prejudicial dicta, eh?

In terms of "basically is a smart, conscientious guy," it remains to be seen what the implications of that are. The words that float to the top of my mind include "heaven help us from basically smart, conscientious guys."

Posted by: Paul Gowder | Jul 20, 2005 11:56:48 AM

Paul, come now, that seems a mite over the top. What evidence do you have that Roberts is "a steel technocrat." He probably just disagrees with you on various issues--as does Fitzie. To say he's devoid of human spirit (or a ruthless discriminator?) is uncharitable and at least at this point, unevidenced. It does make for good blogging, though, I'll give you that! But consider, the guy had an easy time getting confirmed by the Dems to the DC Cir. b/c he basically is a smart, conscientious guy who doesn't want to push the law in a direction that, on balance, we would like to see more. This is democratic (and constitutional) politics, no?

Posted by: Dan Markel | Jul 20, 2005 11:26:13 AM

No, actually, I am going to comment. This Roberts thing is the Big Revenge for the federalist society (which reaches its ultimate pinnacle in the person of our esteemed classmate) and their vision of a Judiciary of Steel Technocrats. Admittedly, very shiny steel technocrats, but steel technocrats all the same. All hard edges and cold logic and ruthless discrimination and not a human breath in the lot.

Posted by: Paul Gowder | Jul 20, 2005 11:12:05 AM

no comment

Posted by: Paul Gowder | Jul 20, 2005 10:57:49 AM

The comments to this entry are closed.