Thursday, July 21, 2005

Roberts redux

Billmon has a great screed up about Roberts, which I like even though I well-nigh completely disagree with all his conclusions. (Bill's always a good read.) Reduced to its essence, it advocates Total War on Roberts. And he means Total War -- all caveman-Chuck-Colson- Lee-Attwater-Karl-Rove war. Pictures of him alongside Bernie Ebbers and Osama. Rubbing his face in the "infamous french fry case." It's a fun fantasy. But what a mistake it would be. To be fair, Bill's greater point, I think, is that all of these options -- including the full armamentarium of dirty tricks -- should always be considered, with the only considerations being strategic. That, too is an interesting point for debate, but let's hold off on that Big Question and focus just on this particular matter. And on this matter, I can see no upside and oh-so-many downsides to an all-out war here.

I hold no brief for Roberts, to be sure (see last post), but he is a less-unreasonable, less-in-your-face choice than expected. As such, the nomination is no doubt an index of how wounded Shrubbie is politically right now. All of the women under consideration other than the maguffin, Clement (who apparently wasn't really being seriously considered but was only on the list to serve as a head feint and smokescreen) are nasty pieces of work (Jones, Owens, Brown). As I noted below, the fact that he's very smart and very talented might make him more dangerous than one of those Looney Tunes, but for the same reasons, it's hard -- indeed, I think, impossible -- to say he's not qualified.

And let's tick off just a couple fo the costs. First of all, a war will consume an awful lot of money that is needed to fight Rehnquist's replacement, and believe it or not there is a limited quantity of George Soros's money to be spent. Second, it would cost us dear in the precious currency of credibility. And like it or not, we need it. They seem to get by fien without it. Life sucks but that's the way of the world right now.) Going to the mat on Roberts would play right into the prefabricated talking point that the libr'lz are going to put a Fatwa on anyone Bush nominates, doesn't matter who. And, c'mon folks. He's very conservative. Anyone able to keep a straight face while pretending to be surprised that Bush didn't appoint a "moderate" like O'Connor? (And don't get me started on Sandy. She's not really moderate so much as incoherent. And her presence on the Court has contributed mightily to incoherent constitutional doctrine.)

Much more intriguing is Billmon's later suggestion (prompted by, of all things, reading an Ann Coulter screechfest) that we should instead consider using some jujitsu.

[M]aybe the Dems should praise him instead of slamming him. Talk about his tolerance and his respect for diversity. Congratulate Bush for picking such a moderate, fair-minded jurist -- one who has already testified that Roe v Wade is settled law." Tell the world they're overjoyed the president selected a nominee who can reach across the partisan divide, instead of some extremist skin job with a radical religious agenda. Smother Roberts in some hot, juicy Demo love.

Say that kind of stuff often and loud enough, and it might plant some seeds of doubt in those tiny wing-nut minds: "If the filthy 'rats like him so much, he mus' be some kinda librul."

Now that's some deep-game thinkin'. I like it.

But lets get back to Mr. Justice WhiteMan himself for a moment. There are definitely serious-ass concerns.

If we can strive to think about something other than abortion for a moment, I think Roberts is a serious threat to all manner of beneficial federal regulation. Hell, it appears that while in law school, he was dreaming up ways to resurrect the Lochner-era notion that the constitutional provision prohibiting laws "impairing the obligations of contracts" elevates freedom of contract to a sacral realm that cannot be touched by social and economic regulation.

I am very troubled by his dissent in Rancho Viejo v. Norton, in which he argued in a that Congress was without power under the Commerce Clause to apply the Endangered Species Act to matters such as a property developer's rare-toad-killing development activities because there was no evidence that -- I shit you not -- the particular toad or toads in question ever hopped across state lines. (For the unitiated, the power ‘‘[t]o regulate Commerce . . . among the several states" -- the Commerce Clause -- is the most potent source of legislative authority in the Constitution. Without it we wouldn't have, among other things, the Civil Rights Act of 1964, the National Labor Relations Act, the Fair Labor Standards Act, you get the idea. Lose the Commerce Clause authority and we lose a LOT.) I find the fact that Roberts took up his pen here particularly significant because of the posture of the case. A three-judge panel of the D.C. Circuit (a court that handles a hugely disproportionate amount of regulatory litigation, and which is hardly stocked full of wooly-headed Bolsheviks) had already concluded, in a very able opinion I might add, that the Endangered Species Act in fact applied to Rancho Viejo's bulldozing of rare toads and that such application was not outside Congress's Commerce Clause authority. Thus, Roberts's dissent was addressed to the court's failure to take the case en banc (that is, before the full complement of D.C. Circuit judges) in order to overrule the panel decision and overrrule some settled precedents as well. As noted, this court is hardly brimful with hariy Marxists, and only one other judge (Sentelle, don't get me started on him) thought the same way. Thus, that decision is significant for two reasons beyond the fact that it's just plain scary on the merits (and a little nutty to boot, although his position finds solace in some of the Supremes' recent -- but, significantly, pre-medical-marijuana -- Commerce Clause cases): First, it shows clearly what kind of stuff lights Roberts's fire -- regulatory legislation that gets in the way of bulldozers (well, really, any economic activity). Second, and in a related vein, it gives us a window into where he might want to go in terms of blazing new legal trails (and, perforce, bulldozing precedents) as a Supreme. And it don't look good.

In addition, Roberts joined the opinion of another D.C. Circuit Brownshirt to hold in Hamdan v. Rumsfeld that (1) the Administration's Kangaroo 'Military Tribunals' were properly authorized by Congress's pussilanimous 9/11 terrorism resolution and two other (rather obscure) federal laws; and (2) the Third Geneva Convention's protections for prisoners of war are not enforceable in court. Also bad news.

These are my Big Two red flags. That said, I must confess to finding it impossible even to feign being exercised over Roberts’ ‘french fry’ ruling. For those unfamiliar, the DC Metro authorities decided that the chief problem confronting commuters on the subway system of the nation's capital is not bomb-wielding zealots but rather fast food consumption, especially by minors. Accordingly, they adopted a zero-tolerance policy for any violation of a D.C. law forbidding passengers from sipping their coffee or stuffing their faces with heavily salted foods. A young girl was arrested and detained pursuant to the policy and tried to make a federal case out of it, alleging that the stupid, hamfisted antics violated the Constitution. Roberts wrote the opinion (for a unanimous panel) affirming the trial court's dismissal of the case.

Why no outrage?

Well, first, the decision seems pretty unimpeachably correct. The girl claimed an equal-protection violation based on the theory that she was singled out for extra nasty treatment because of age (older spud-eaters were not arrested), but that claim involves the absolute lowest-level scrutiny of the government's action, which virtually always requires that the challenged action be upheld. She also claimed a Fourth Amendment violation, a claim that is dead on arrival in light of the Supreme Court’s decision upholding the arrest and detention of a woman for failing to wear her seatbelt in Atwater v. City of Lago Vista. Shitty decision, for sure. But you have to blame Souter (who wrote the opinion) as well as Rehnquist, Scalia, Thomas, and Kennedy (who joined) for that one.

Second, I have to admit that Roberts writes a damn good opinion, and in this one he took pains to be kind to the plaintiff. Here's the first paragraph:

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.

Hell, when I lose a case, that's how I like to lose it. By the way, the hapless motorist in Atwater had a shitty time of it too, but you see nary a kind word in Souter's very businesslike opinion. Here's her ordeal:
In March 1997, Petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater’s complaint . . . Turek approached the truck and “yell[ed]” something to the effect of “[w]e’ve met before” and “[y]ou’re going to jail.” He then called for backup and asked to see Atwater’s driver’s license and insurance documentation, which state law required her to carry. When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two hundred times.” Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “[y]ou’re not going anywhere.” As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.
While Roberts has been accused of writing a hard-hearted decision in the french fry case, check out what Souter (a justice I otherwise admire greatly) says after recounting Atwater's travails. Does he make so much as a nod to the fact that the treatment is hugely disproportionate or "foolish"? No. He starts with a history lesson: "We begin with the state of pre-founding English common law and find that [based on some 20 pages of really unenlightening historical meandering, the common law was just fine with warrantless arrests on the spot]."

I'm just sayin'.


Felix said...

Came here from the Majikthise thread.

I agree entirely on the french fry case.

On Rancho Viejo: because I know that Roberts is Bush's pick, I assume that he's a loon: therefore, I immediately read his dissent as saying that he wants to strike down the ESA because he wants to destroy the environment to hasten the rapture. But if I didn't have that piece of information, I'm not sure Roberts' dissent would strike me as crazy. The panel had noted that there were two rationales in NAHB to support the application of the Act: (1) that loss of biodiversity affects the ecosystem which affects interstate commerce, and (2) that the activity that Rancho Viejo wanted to engage in, but could not because of the toad, was interstate commerce. The panel's opinion rested on (2). Roberts' dissent is pretty cautious. He doesn't say that the ESA is unconstitutional, only that rationale (2) "seems" to be wrong. And he has a point: (2) is in conflict with the Fifth Circuit, and in tension (at least) with Lopez and Morrison. And Roberts drops that hint that he is open to finding other rationales to uphold the application of the Act. Again, if he weren't Bush's pick, I would say that all Roberts wants to do here is some doctrinal tidying-up: he wants to get rid of an unsound rationale for the ESA, but he's happy to replace it with a sound rationale -- protection of biodiversity is important for interstate commerce -- that works just as well, really. Unless, of course, he's just being collegial and apparently moderate to make it easier to get his hard-line way. In any case, it's troubling, but it may not be as bad as it seems -- and Raich may change his analysis anyway.

This sort of uncertainty, of course, is why Roberts is going to be impossible to attack effectively.

Ginger Man said...

That is a very good point. On a closer read, he is careful to at least feign agnosticism on the ultimate issue. In contrast to Sentelle’s opinion, which did not admit of the possibility that the application of the ESA in this instance could be constitutional, Roberts was indeed careful to point out that taking the case en banc “would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.” In so doing, he cited footnote 2 of the panel decision, which I think references rationale No. 2.