Roberts and The French Fry Case
While the “emanation of penumberas” (more later on what that means) from the “fever swamp” (as Hugh Hewitt would say) of the left get into full swing, we thought it might be a good time to review some of the opinions and briefs which Judicial Nominee John Roberts has written.
Most of the left are referring to this case, which is by the way, Hedgepeth v. Washington Metropolitan Area Transit Authority, as part of their reasoning to oppose a confirmation of Judge Roberts. Their argument is of course that Judge Roberts did not afford this 12 year old girl protection under the fourth and fifth amendments of the Constitution. The left has gotten used to the judiciary making up law when there is none to fit their pre-determined outcome. As a matter of course, it is now common practice for the left to challenge laws they don’t like up through the court system for the very purpose of allowing the judicial system to conjure one up out of thin air as the “emanations of penumberas” we spoke of earlier which is exactly what Justice William O. Douglas did when writing the majority opinion in Griswold v. Connecticut in 1965 . The following is what Justice Douglas wrote:
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen.” (emphasis added)
What is a penumbra? Mark R. Levin defines it this way in an article in National Review Online entitled, Death by Privacy:
“A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot — and it is another way to describe something unclear or uncertain. “Emanation” is a scientific term for gas made from radioactive decay — it also means “an emission.”
So Justice Douglas extruded from the Constitution a right of privacy where none existed. We wrote further about Griswold v. Connecticut here and here.
But as we look through the opinion written by Judge Roberts for a unanimous decision of the Hedgepeth v. WMATA case, we find something quite different in his writing and style. He shows great compassion. He does not attempt to defend the arresting officers, or the policy which set the stage for the arrest, on the contrary, he offers some criticism of the policy, but explains that it is not the duty of the court to change the policy, only to rule on it. In the end he and the two other judges find no violation of non existent rights afforded to the young girl by the Constitution.
Here is some of what Judge Roberts wrote as an introduction to the case:
“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.”
He wrote this concerning the freedom of movement:
“Like the district court, we think the right at issue in this case is the right of freedom of movement when there is probable cause for arrest. Unlike the defendants’ proposal, this definition does not depend on the challenged classification — minority status — itself. Unlike the plaintiff’s proposal, it does not ignore the plainly pertinent fact that we are dealing with a conceded violation of a valid law, a fact that historically has carried implications for the asserted right of free movement. The plaintiff goes so far as to cite the Magna Carta in claiming the fundamental freedom against ‘‘being taken [or] imprisoned,’’ see Reply Br. 6 (quoting MAGNA CARTA, ch. 39), but the very same provision of that historic charter recognized an exception when the restraint on freedom was pursuant to ‘‘the law of the land.’’ MAGNA CARTA, ch. 39.
The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). That is true even with respect to minor offenses. Atwater, 532 U.S. at 354.”
He wrote this about the choice of arrest in dealing with a child versus citation:
“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. See City of New Orleans v. Duke, 427 U.S. 297, 303 (1976) (per curiam) (rational basis review does not authorize the judiciary to sit as a ‘‘superlegislature’’).” (emphasis added)
As one can read from the emphasized text above, Judge Roberts and his fellow judges took great pains to adjudicate the case based solely on the merits and the Constitution, while being respectful, courteous, and compassionate. Read the entire case, it is well worth the time to get an insight into this brillant mind.
We find no “emanation of penumbras” in Judge Roberts’ writing above. He is not attempting to extrude something from the Constitution which is not there.
We acknowlege that we are not an attorney, but we do have some knowlege of the English language and some knowlege of how to interpret old documents. Based on the writing above, and if such originalism continues into the Supreme Court when Judge Roberts is confirmed, conservatives can rest assured that Judge Roberts will follow in the path of not just Rehnquist, but that of Scalia and Thomas. Of course the left will read the above, and will fight all the harder to defeat his nomination because their whole modus operendi is to have Justices who will legislate from the bench.
Hopefully, in the next few days, we can analyze another case or brief of Judicial Nominee John G. Roberts.
