Judicial Analysis Made Easy

By Marc Fisher
Thursday, July 21, 2005

You can follow the next two months of political thrashing and hullabaloo over the nomination of John Roberts to the Supreme Court, or you can get the whole thing over with by looking at how he handled a single french fry.

Thanks to a ninth-grader at Deal Junior High School who in 2000 committed the horrifying crime of eating a fry in the Tenleytown Metro station, we have as strong a look inside Roberts's mind as we're likely to get from weeks of investigation and hearings.

Ansche Hedgepeth was only 12 when a Metro police officer caught her, fry in hand, as she waited for her Red Line train. Under the system's zero-tolerance, no-eating policy, the cop arrested Ansche, cuffed her and took her in. An adult in that situation would have gotten a citation, but District law said minors were to be taken into custody until retrieved by a parent.

The french fry case hit John Whitehead's buttons. A Charlottesville lawyer whose Rutherford Institute fights for civil liberties from a conservative perspective, Whitehead took on Ansche's case, arguing that the government had gone too far. The matter wound up in the U.S. Court of Appeals, and Roberts's decision last fall shows him to be a witty writer with the confidence to show some heart. He seems pleased that after "the sort of publicity reserved for adults who make young girls cry," Metro changed its policy and no longer arrests young snackers. Roberts recognizes that Ansche wants the charges nullified because no one wants to have to say yes to that standard application question, "Ever been arrested?"

But Roberts quickly divorces himself from the human side of the case. He has no sympathy for the notion that Ansche was discriminated against because of her age. Roberts says government has every right to treat children differently, setting age requirements for voting, marriage, driving and drinking. Anyway, he notes, the fact that Metro changed its policy so quickly shows "that the interests of children are not lightly ignored by the political process." But Roberts rejects the idea that the court should weigh in on whether the police trampled on Ansche's freedom.

President Bush has always said he likes judges who take a limited view of their role, who stick to the facts without imposing their political interpretations. But that's all political rhetoric: Every case requires every judge to interpret the law. The question is what philosophy guides them.

At every turn in the french fry case, Roberts defers to authority. He says Metro's policy of arresting kids "promotes parental awareness and involvement" by requiring parents to pick up their misbehaving child.

Roberts may personally doubt Metro's arrest policy -- "it is far from clear that [the arrest is] worth the youthful trauma and tears" -- but he concludes "it is not our place to second-guess such legislative judgments."

There's the Roberts philosophy. He repeats it throughout the opinion: It's not the court's role to tell police whether an arrest is reasonable if the officer has probable cause. It's not the court's place to consider Ansche's constitutional rights if Metro has already changed its rules.

As Whitehead told me yesterday: "He's exactly what I would expect George Bush to choose. He's very deferential to authority, whether government or business. He's not a civil libertarian. He is a thinking judge and he sees Ansche's pain. But he's like the father that comes to whip you and says, 'This hurts me more than it hurts you.' He just doesn't see that the letter of the law only works when it applies to human beings."

The french fry case tells the story of someone much like the president -- a man who embraces the rhetoric of limited government but defers to and protects government authority. Roberts will disappoint both ends of the spectrum. He's neither an Antonin Scalia nor a William Douglas, justices whose personal passions bled through their judicial opinions, making them polarizing but creative and influential.

The reporting on Roberts describes him as a conservative Republican, but a single french fry reveals more about who he is on the bench: a judge who sees it as his task to separate the mess and emotions of daily life from the letter of the law.

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