Judge Roberts and the French Fry Case

One of the opinions written by Judge Roberts during his brief tenure as a judge on the Court of Appeals for the District of Columbia is colloquially known as the "french fry case."  In this case, the mother of a 12-year old girl, Ansche Hedgepeth, brought an action under 42 U.S. C. 1983, alleging that her daughter's Constitutional rights were violated when she was arrested in a DC Metro (subway) station for eating a single french fry.  Hegdepeth v. Washington Metropolitan Area Transit Authority, 386 F. 3d 1148 (D. C. Cir. 2004)

The opinion starts off well enough with Judge Roberts writing, "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 seat 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."  

A little background is in order.  Ms. Hedgepeth was arrested at a Metro station that serves about 3,000 young people per day.  Students from Deal Junior High School, Wilson High School, Sidwell Friends, and Georgetown Day.  Ms. Hedgepeth is a minority.  However, statistics showed a mix of both blacks and whites were arrested during a week long sting operation conducted by Metro transit police shortly after school started and Metro riders began complaining.  24 adults received citations; 14 minors were arrested.

Metro changed its policy soon after the "french fry incident."  As a result, youthful offenders of the "no eating, no drinking" rules now are not arrested.  Instead, warning letters are sent home with the youngster with a follow-up letter to the parents.  Ms. Hedgepeth argued that mandatory arrest of juveniles violated equal protection and that her arrest for eating a single french fry was unreasonable.

While it is hard to argue with some parts of the opinion written by Judge Roberts (particularly those parts dealing with probable cause for the arrest), the opinion is cold and heartless.  He writes, "The district court had and we too may have thoughts on the wisdom of this policy choice [detention until the parent is notified]--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."

This opinion shows that Judge Roberts is not a judicial activist.  It also shows he has no soul.  

•  That is exactly what I am looking for

  I am not sure exactly what you mean by having no soul, but I want a judge who is not a judicial activist and will make his decision based on the merits of the case with respect to the law that is written.  I do not want a justice who substitutes his or her moral beliefs for what the law requires.  

  That does not mean I support Judge Roberts.  There is still much research to be done.  But this case gives me some comfort that he will do a good job if confirmed.

  by MattR on Thu Jul 21, 2005 at 03:45:38 PM PDT

  •  Well

    I don't want a justice such as Scalia who judges a 21st century world by 1787 standards.  That is the "originalist" or "strict constructionist" philosophy.  That is frightening to me.

    A justice should take into consideration the current realities when rendering a judgement, and extrapolate what the Constitution means today.

    by jim bow on Thu Jul 21, 2005 at 03:54:27 PM PDT

  •  Ms. Hedgepeth Now Has An Arrest Record

    Whenever Ansche Hedgepeth fills out an application form for a job or for college, she will have to answer the question, "Have you ever been arrested?  with the word "Yes."  How many employers will look beyond that word.  

    Meanwhile, the legislature had changed its policy realizing that detaining children for eating a french fry and saddling them with an arrest record is not a good thing.

    Here's the real question:  if Judge Roberts is faced with a legislative judgment concerning judicial bypass for a minor's abortion, will he feel constrained to accept the legislature's judgment?

    by eafredel on Thu Jul 21, 2005 at 06:47:49 PM PDT

•  Miranda

  One of the most important, and necessary questions we must ask Judge Roberts is does he think that Miranda v. Arizona and United States v. Dickerson, which reaffirmed Miranda were correctly decided.  I feel Miranda is tantamount to Brown v. Board of Education.  Both cases are litmus test cases.  If there is a scintilla of a doubt that the nominee will overturn Miranda or Brown, they must be rejected at all costs (including the filibuster).  It's just unacceptable for even one nominee to vote to overturn such a landmark and important decision.  By the way, Justice Scalia, with Justice Thomas joining, wrote a dissent in Dickerson overturning Miranda.

  by jim bow on Thu Jul 21, 2005 at 03:45:51 PM PDT

•  Some REAL analysis on the French Fry case

  From the originally posted diary, its hard to see how we end up concluding that Roberts has no soul. However, for a very well thought out opinion on the matter that deals with the soul and humanity of the case, visit Kim Lane Scheppele's post at Balkinization

  Even though [Roberts'] statement of facts in Hedgepeth begins with a lament that "No one is very happy about the events that led to this litigation," he did not let his unhappiness divert him from what, in his view, the law required. And the law allows of no exceptions, no room for common sense to modify the strict operation of a strict rule. Though many of us have railed against Justice O'Connor's fact specificity and her predilection to decide cases on the narrowest possible grounds, I suspect that we are going to very much miss her humanity. Ansche Hedgepeth may be the first visible victim of the future Justice Roberts' strict constructionism.

  I very much appreciated this commentary as it suggests that we are impacted as much by Roberts' impending SCOTUS arrival as much as the departure of O'Connor. While it doesn't prove that Roberts doesn't have a soul, it suggests that, perhaps our reaction to him is very much harshened by a contextual comparison to O'Connor's humanistic/liberalesque moments. When O'Connor made comments that she was disappointed that her successor wouldn't be a woman, I wonder if, in some small way, she realized that her style of balance-test jurisprudence would more likely be continued by a woman but not a man...

  by dato74esq on Thu Jul 21, 2005 at 04:03:58 PM PDT

•  Snarkiness and The Law

  OK, I'll chalk this diary up to the fact that the majority of folks don't read legal opinions or draft legal briefs for a living.  But from my own humble experience, I can't see how the portion of the opinion quoted shows that Judge Roberts "has no soul."  I mean, do you expect a legal opinion to read like "The Bridges of Madison County"?

  The quote is a legal version of "You know, I think, my fellow judges think and probably most people think that this policy which forced the police to hold a kid for eating a single french fry is stupid as a bucket of mice, but what do we know, we're just judges."

  Honestly folks, let's take Kos' and Armando's cry of fighting smart to heart--meaning we need to focus on figuring out Judge Roberts constitutional philosophy (which, speaking as a lawyer, cannot necessarily be ascertained though his role as an advocate).  I know we're all trying to be good liberals, but falling into the Repo stereotype of a shrill humorless whiny liberal doesn't help us.  Let's leave the intellectual laziness and searching for an excuse to nail the opposition before finding any facts for the Rethugs, OK?

  by Marty Stark on Thu Jul 21, 2005 at 04:13:46 PM PDT

  •  Agreed In Some Respects

    The real question is whether Justice Roberts will feel as constrained by all legislative judgments as he says he is in the case of Ansche Hedgepeth.

    Part of my problem with his result in Hedgepeth is that the legislature had already changed the policy by the time the case was decided.  As a result, Judge Roberts was deferring to a legislative judgment that the legislature itself had changed.

    In addition, the Metro transit police changed their enforcement policy.    If a law is seriously enforced for a week through a sting operation, is the law really reasonable?

    by eafredel on Thu Jul 21, 2005 at 06:55:33 PM PDT

    •  A Quick Admin Law / Con Law Primer

      Unless a law is disciminatory on its face against race, gender, religion or physical ability, then the courts are obliged to give great deference to the legislative body.  Judge Roberts, as well as the other judges in this unanimous decision, had to defer to the legislature's implicit finding at the time the notification policy was enacted that the benefits of notification outweighed the embarrasment of a child--even though the judges themselves thought the actual implementation was completely idiotic.  If he ruled otherwise, Judge Roberts would have been a de facto legislator substituting the court's policy (as opposed to legal) beliefs for the legislatures.

      In addition, the courts are obliged to interpret the law that was in effect at the time of the conduct as opposed to the law in effect at the initiation of a suit or case.  Let's put it this way--assume some poor sap gets busted for possession of marijuana and the law the day he's arrested says he can only be sentenced for a month.  The very next day, the legislature enacts a bill that increases the minimum to five years.  The poor sap gets tried a month later.  Under your logic, this poor sap goes to jail for five years because obviously the legislature figured the one month sentence was bunk and unreasonable by amending the sentencing.

      But our laws don't work that way.  That's why we have a prohibition against ex post facto laws.  And that's why, as stupid as the enforcement of the notification policy actually was, the court had to rule the way it did.

      An opposition can be only as effective as its weakest link, so let's try not to get derailed by fundamental misunderstandings of the law.  

      by Marty Stark on Thu Jul 21, 2005 at 09:50:21 PM PDT