Balkinization  

Wednesday, July 20, 2005

Ansche Hedgepeth’s French Fry

Kim Lane Scheppele

Now that John Roberts has been nominated for Justice O’Connor’s seat on the US Supreme Court, his few opinions written on the DC Circuit Court of Appeals will be scrutinized line by line. In the main, they seem, so far as I have been able to tell on a quick scan, to deal with fairly specific and technical questions whose answers seem hard to generalize into major constitutional controversies.

But then there is the case of Ansche Hedgepeth.

Ansche Hedgepeth was, at the time of her crime, 12 years old. She was waiting for a friend to buy a Metrocard at the Tenleytown/American University Metrorail station in Washington, DC when she committed the fateful act.

She opened the fast food bag she was carrying and ate one French fry – in plain view of an undercover police officer.

The police officer placed her under arrest, handcuffed her and removed her shoelaces “pursuant to established procedure,” as the opinion tells us. She was held at the local police station for three hours until her mother could come to collect her.

Her offense? She violated a city ordinance against eating in Metro stations. The police had been instructed to adopt a “zero tolerance” policy in enforcing this ordinance, and Ansche Hedgepeth was one of 14 juveniles arrested for similar infractions during zero tolerance week.

The adults who ran afoul of the policy during zero tolerance week were merely given citations on the spot and were allowed to pay their fines later, as the local ordinance permitted. Minors were not eligible for such citations, however, and so were arrested because that was the only strategy available to police to enforce the ordinance. Given that police had been told that no infraction, however minor, was to be excused, any minor caught eating in the Metro was subject to mandatory arrest.

Her mother brought suit on Ansche’s behalf against the Washington Area Metropolitan Transit Authority asserting that Ansche’s arrest violated her equal protection right under the Fifth Amendment and her right to be free from unreasonable seizures under the Fourth Amendment. Both claims failed.

To the argument that age should be considered a suspect classification that would trigger heightened scrutiny in constitutional Fifth Amendment analysis, Judge Roberts wrote for a unanimous panel that it is not. As a result, the difference between the treatment of the adults and the treatment of children in the DC ordinance was subject only to a rational relation test, which Judge Roberts found it easily passed.

To the Hedgepeth argument that Ansche’s arrest burdened a fundamental right to be free from restraint, Judge Roberts wrote that no one has a right to be free from restraint when they have obviously violated a law under the very nose of the police:

The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest.. . .That is true even with respect to minor offenses.


And to the argument that such a minor crime could not produce a “reasonable” arrest, Judge Roberts cited the Supreme Court’s decision in Atwater v. City of Lago Vista which held that a police officer had not acted unreasonably in violation of the Fourth Amendment when he arrested a woman who had merely failed to fasten her seat belt. So too, Ansche Hedgepeth, could not rely on the Constitution to escape the consequences of her misdeeds. She clearly ate a French fry in clear violation of the city ordinance in the clear view of a police officer. No leniency for her.

(Poor Ansche!)

As a doctrinal matter, the Hedgepeth case might be of little interest. But it is one of the few decisions we have to go on to see how a future Justice Roberts would differ from the departing Justice O’Connor.

As it happened, Atwater was a 5-4 decision in which Justice O’Connor penned the dissent. If Justice Roberts were on the bench instead of Justice O’Connor, then, this is not one cases where the 5-4 vote would have gone the other way. But Justice Roberts’ opinion has a markedly different sensibility from that of Justice O’Connor, and given the similarity of the facts in the two cases, one can begin to get a sense of how Justice Roberts would alter doctrine in which he would be replacing Justice O’Connor’s crucial vote.

Justice O’Connor in Atwater was clearly disturbed by the prospects of someone being subjected to a full-blown arrest merely for not wearing a seat belt. So, she proposed a Fourth Amendment balancing test. As Justice O’Connor wrote:

There are significant qualitative differences between a traffic stop and a full custodial arrest. While both are seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion on an individual’s liberty and privacy interests. . . . Justifying a full arrest by the same quantum of evidence that justifies a traffic stop–even though the offender cannot ultimately be imprisoned for her conduct–defies any sense of proportionality and is in serious tension with the Fourth Amendment’s proscription of unreasonable seizures.


Proportionality analysis. This was the device through which Justice O’Connor was able to see the humanity in the problem. Had her view prevailed, the reasonableness of arrests for minor offenses would have to be determined in light of the state interest to be achieved through such an arrest:

Because a full custodial arrest is such a severe intrusion on an individual’s liberty, its reasonableness hinges on “the degree to which it is needed for the promotion of legitimate governmental interests.” [citation omitted] In light of the availability of citations to promote a State’s interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment’s command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion” of a full custodial arrest. [citation omitted]


Now this approach, had it been the holding in Atwater, would no doubt have created yet another field of constitutional law in which bright-line tests gave way to balancing with less predictable results. Police departments are no doubt grateful for the five votes on the other side. But those of us in the general public who are now subject to discretionary arrests for fine-only misdemeanors might feel differently.

Judge Roberts’ opinion, admittedly, was able to rely on the already decided Atwater case, in which Justice O’Connor’s views did not prevail. He could, therefore, be simply said to be following the rules laid down.

But there was wiggle room to distinguish Ansche Hedgepath’s case from Gail Atwater’s – wiggle room purposively left by the Atwater majority. Justice Souter’s opinion for the Court positively invites a future distinguishing case when he notes that the police officer in Atwater was “authorized (not required, but authorized)” to arrest Atwater and that police needed to be able to exercise this discretion in the heat of the moment to determine whether an arrest was necessary. (In Atwater’s case, her two children were sitting in the front seat, also without seat belts.) Had the police officer in Atwater been required to arrest the offender no matter how trivial the infraction, as the police officer was in Ansche Hedgepath’s case, a reasonable judge might have concluded the arrest itself was not reasonable. Eating one French fry does not endanger others as failing to buckle in one’s children would.

But Judge Roberts seems determined to draw bright lines. Even though his 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.

Comments:

You're kidding here, right? I mean, sure, this is a more intellectually honest post than the NY Times's blatantly distorted account of Judge Roberts's dissent from the en banc petition in Rancho Viejo, but do you seriously think the Constitution required the cop to exercise different judgment here?

I'm all for the officer exercising better discretion when it comes to 12 year olds eating french fries. But is there seriously a constitutional question raised here? Or is this meant to be irony? Because I like irony, and I wouldn't want to miss out on it by taking this seriously. Seriously.

But maybe I'm just a loony guy lacking humility like that notorious conservative activist, David Souter, author of the majority opinion in Atwater, which refused to rewrite the 4th Amendment or to ignore its history.
 

The constitutional question is whether a city may require its police to arrest everyone who violates a minor ordinance for which the maximum punishment is a small fine. The Constitution, after all, requires seizures (i.e. arrests) to be "reasonable" and not merely authorized by a law. Atwater did not rule on a policy of mandatory arrest, and that is why I suggested the Hedgepeth case was distinguishable.
 

Whoa. The "constitutional question," most emphatically, was not "whether a city may require its police to arrest everyone who violates a minor ordinance for which the maximum punishment is a small fine."

The constitutional questions were three-fold. First, did D.C.'s zero tolerance policy violate the Equal Protection Clause as an impermissible age-based classification, slip op. at 7-10, or because it burdens the constitutional right to be free from restraint not based on probable cause. Slip op. at 10-13.

The age-based classification met rational review, which is no surprise, given what rational basis level of review consists of. The second EPC claim failed because freedom of movement is not a fundamental right. Others (like me) viewed her claim as a veiled Fourth Amendment claim. Anyhow, those claims duly failed.

The final argument was that the seizure violated the Fourth Amendment. Slip op. at 13-18. Post-Atwater, this was a slam-dunk, "No." Ask around. I wasn't happy about Atwater, but Atwater demanded the resolution of the Fourth Amendment issue. Hedgepeth tells us nothing about Roberts.
 

This is really such a stretch. But let's try it your way, and recall these words of Justice Souter's opinion:

"Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause “applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.” Dunaway v. New York, 442 U.S. 200, 208 (1979). If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."

Now, I take it that your contention is that the evidence of this case is that Justice Souter is inviting us to view a one-week policy as raising a constitutional issue that a single officer's discretion as exercised in the case would not. What makes the policy constitutionally unreasonable? Certainly the harms are no different here than in the case of the single officer's discretion (the one not acting on a "mandatory" policy). There is little in Souter's opinion that would suggest a lower court would be invited to invalidate a one week "zero tolerance" policy.

There are, however, contrary indications. To wit, Justice Souter's sense that the ultimate question here is the "manner" of the seizure. That hardly "invites" a lower court to find a way to distinguish zero tolerance week on the grounds of the mandatory policy. It goes back to the probable cause analysis--not to a general sense of whether the policy is in all ways reasonable (as a use of public funds, officers time, or the like) but to whether an individual has suffered an unreasonable seizure in light of the evidence that a crime, even a very minor one, had been committed.

To read this decision otherwise in order to accuse Roberts (and, presumably, in all fairness, Henderson and Williams) of some kind of heartlessness is really over the top. Judge Roberts' humanity is displayed in his frank acknowledgment of the regrettable nature of the case. His humility is displayed in his recognition that sometimes courts are not empowered (especially lower courts) to invent novel readings of the Constitution in order correct every unfortunate situation they encounter.

The "one case at a time" wiggle room of Justice O'Connor's jurisprudence was in fact an arrogating of power to the court; the preference for bright lines is a humble preference, and in that a humane one for democracy. I think we can reasonably trust that a long-term, or perhaps even a repeat policy of arresting little french-fry eating girls will not long last in Washington, DC, the bluest of blue zones on the electoral map...

Why not stop with your first paragraph, which acknowledges that there is little to go on, rather than implying that the case of "poor Ansche" is not also one that seems hard to generalize into a major constitutional controversy.
 

Indeed, in footnote 23 to his opinion, Justice Souter added this:

"He referred to a newspaper account of a girl taken into custody for eating french fries in a Washington, D. C., subway station. Tr. of Oral Arg. 20—21; see also Washington Post, Nov. 16, 2000, p. A1 (describing incident). Not surprisingly, given the practical and political considerations discussed in text, the Washington Metro Transit Police recently revised their “zero-tolerance” policy to provide for citation in lieu of custodial arrest of subway snackers. Washington Post, Feb. 27, 2001, at B1. "

Now, if we were seriously imagining that the circumstances of poor Ansche were "purposively" anticipated by Souter's noting that the arrest in his case was "authorized" but not "required"--wouldn't this footnote dealing with the very facts at hand have been a darned convenient place to make that invitation clear? Rather, he suggests, as I did, that we might just trust elected officials once in a while not to create a "parade of horribles" from which we need inventive "humane" judges to save us.

Could be Roberts read the footnote as an invitation to leave this to "practical" and "political" considerations, rather than to create new constitutional ones.
 

I LIKE bright lines, especially if they show some reasonable relationship to the Constitution and the law. And this one does, even if I think the officer could have shown better judgement.
 

Would it have made a difference if this 12 year older was eating "Freedom Fries"? I wonder how many arrests of juveniles have been made under the statute involved. As with the case of Bush v. Gore, "Equal Protection, My Ass."
 

Not that there is any chance that I would ever be appointed a judge, but I would have ruled that if "quality of life" was the rationale for the child's arrest then the arrest failed the rationality test. It hurts the quality of life of a city far more to put a little girl in handcuffs than to let her eat a french fry on the subway.
 

Are we to assume -- as most of the commenters here (and Souter) seem to be doing -- that the framers of the constitution meant something other than "reasonable" by their use of the word "reasonable?"
 

Disagree to a great extent on the no humanity point.

Can the judge be blamed for silly, inflexible rules adopted by the legislature?

Here, the legislature can and did change the silly rules they had formerly imposed.

Roberts makes clear he finds the situation sad and embarassing for all.

Now, a brilliant humanist and jurist would have sent this case to arbitrarion, and tried to get DC to remove this kid's arrest record without conceding that the government acted improperly.

So, Roberts is not brilliantly humane or personlly innovative enough to recognize that he needed to push settlement. So what? Virtually no appellate judges push settlement, though they should.

The Hedgepeth case is not much of a cudgel against Judge Roberts. It just tends to show he's a boring, stodgy, workmanlike judge who won't be outside the box.

Now, I'm ready to hate Roberts if the evidence emerges to support it. But this doesn't get anywhere near the mark.
 

Paul,

We are assuming that we should look at the context and content of the entire amendment rather than the word "reasonable" in isolation, especially as it has historically been applied to situations like the cases at hand.

That's what Souter does, and he focusses the force of "reasonable" for purposes of the amendment on the probable cause issue--as in, having a reason to arrest me that is not arbitrary or pernicious (don't like my hair, my skin color, etc.). Doesn't that seem like a reasonable use of reasonable to you in the context of the 4th amendment?

Clearly, really expensive searches and seizures based on excellent probable cause might be unreasonable--but that seems like a separate issue from the individual right being protected here, no? One for legislatures to determine in their responsibility for the public purse.

I think that SOC's dissent in the case makes the error of yes, reading "reasonable" too broadly. That's what footnote 23 indicates about Souter's thinking, as do other parts of his opinion.
 

The Constitutional import of Hedgepeth's case is that the simple act of arresting a citizen for a minor offense (which is legally condoned in the Atwater case) is now extended to include arrest for minor offenses committed during a "limited time only" period of zero tolerance; that is, during a temporary period of time in which officers are expected to arrest the perp for an offense that does not normally rate an arrest. I'm guessing that the Hedgepeth case could be heard again, perhaps during the first week of November during an election year.

I'm prepared to hate Roberts simply for his being nominated for a lifetime appointment to the highest court in the land by George W. Bush. The President most certainly knows a lot more about Roberts than we do, and what he knows about Roberts, he likes. If Bush knows these things--but the press does not--then these "things" are things held closely to one's breast, jealously guarded, hidden. I have little reason to give this Administration the benefit of a doubt, and a lot of doubt exists here.

The Hedgepeth case is not limited to kids eating fries in a subway station. It illustrates the judge's slavish compliance with the letter of the law. Unfortunately, the letter of the law often requires interpretation, which is why we have a Supreme Court at all. Let's not fool ourselves into believing that the strictest interpretation of the letter of the law will be consistently "strict" in the same sense in different circumstances. If that were the case, then the Framers could have booked an extra week at their hotels and replaced Article III of the Constitution with those "strict" interpretations.
 

t. more et al,
I think Ms. Scheppele was mainly showing in broad strokes how Roberts != O'Connor; I think it's pretty useful. "Bright lines" can be good, and O'Connor wasn't one to draw them. I tend to think she was right not to draw one in the seatbelt case; I wish she had drawn one in Bush v. Gore and butted out of that case altogether or deferred to the FL court. Trouble is, Roberts was apparently very active behind the scenes for Bush in that fracas as well; he was such a good activist he got a judgeship out of it.
 

While Professor Schepple raises interesting points about not adhering to strict rules, a more pragmatic analysis should also look to the effect that such a standard would have on the lower courts.

This standard would make it much harder for meritless cases to be disposed of at the motion to dismiss phase, since balancing interests is very likely to implicate factual questions requiring, at the very least, summary judgment.

Providing clear boundaries as to the limits of reasonableness is a major help to lower courts trying to apply lofty precedent in real cases.
 

Chrisdoleis,

Yes, one who hates a man because Bush likes him is in a good position to lecture others on a slavish consistency of thought.

After all, the first Bush liked both Souter and Thomas, and we can see how they are carbon copies of each other.

Thomas Nephew,

I certainly don't disagree about the fact that Roberts will not be like O'Connor, so far as we can tell. But I don't think it's fair of Ms. Scheppele to do a couple of things: (1) apparently not read or read carefully the part of the case where Souter deals with the selfsame french fry case at issue here while simultaneously charghing that Roberts missed Souter's "invitation" to distinguish; (2) to use this small, unanimous case as important evidence of Roberts's "humanity" as a judge.

Similar to today's outrageous NY Times editorial invoking some purported fear of a return to "child labor", or the above post about justified "hate" of a nominee, there ought to be a space for calm and reasoned discussion of things, rather than a rabid hunt for whatever scraps might be isolated and distorted to show that Roberts somehow fails to be "mainstream."

The reality is, Republicans control the White House and the Senate and regularly extol the judicial virtues of Thomas and Scalia--winning elections thereby. The President won the whole thing, fair and square this time, and claiming that the views of his nominees are "out of the mainstream" is nothing more than sour grapes. How does Charles Schumer or Ted Kennedy make any plausible claim to the mainstream?
 

This comment has been removed by a blog administrator.
 

I'm not quite aware why cost is a compelling concern of one writer concern in defining "reasonable."

Likewise, since many searches and seizures do not require a warrant per se, hair color and such is not the maximum bar here.

In fact, certain seizures for years were categorically deemed unreasonable, including "mere evidence" searches. Some on constitutional grounds, not just when the legislature or executive officer decided they were unreasonable.

O'Connor along with three other justices pointed to some history that misdemeanors were among these. The professor makes an intersting argument, which I find reasonable (lol), if open to some debate. I would add that I'm with others here in thinking it doesn't really prove too much re Roberts. A new judge logically would act carefully.

It also is open to some exaggeration though it does suggest the problem with zero tolerance rules as to some extent clear lines which sometimes just not work in our constitutional system.

As to public support etc., actually if anything (for better or worse) decisions like O'Connor's. This doesn't end matters, of course, apropos the post on activism. The ultimate matter is the law and Constitution itself. But, on popular will, the public is sympathetic with the author as well.
 

I'm glad I came back to this thread. T. More, you misquoted me. I clearly stated that "I'm prepared to hate Roberts." Surely you recognize the difference between "hating" a man and being "prepared to hate" a man.

My wife owns a handgun. She is prepared to shoot an assailant if the circumstances merit such an action, but she has not shot, nor does she shoot, any assailants. Those circumstances have not yet come to pass.

Similarly, I am prepared to hate Roberts if the circumstances merit such an action, but I have not hated, nor do I hate, Roberts. The circumstances have not yet come to pass.

Yes, the first Bush may have liked Thomas and Souter; but throughout his five years in office, this Bush has indulged in behaviors his father would have wisely avoided. They are different men. Thomas and Souter are different men. There is simply no logic to your "carbon copy" statement. It--as well as some of the other zingers you've unleashed on various discussants here--appears to have been motivated by narcissism. Such behavior may be intensely gratifying in the seminar room, but it seems coarse in this context.

So which is the situation here: Did you not read or read carefully the part of the post that explicitly established the conditional aspect of the statement you impute to me, or did you pluck through my words for whatever scraps might be isolated and distorted? Doesn't matter which.

You clearly have the intelligence to discuss topics of a legal nature without resorting to snipery. Exercise a little propriety and you can enjoy being "right" at nobody else's expense. I may be an interloper here, but I know that much.

I did not say that I hated anyone.
 

Chrisdoleis, I'm sorry if I missed that you proposed a conditional that wasn't met; I inferred from your being prepared to hate someone "simply for his being nominated" is a lot like hating them when that condition obtains, as it does here. But if I missed the further conditional, I'm sorry. In any event I'm glad you don't hate the man.

Seriously, that is the point of my postings here. I do make them pointedly, but I do not intend to snipe. I find it hard to believe that a serious person out to learn something would read a Souter opinion essentially dismissing the french fry story as an invitation by Souter to use that very story to make the 4th Amendment innovation he was unwilling to make. I think neither Souter nor Roberts demonstrate a lack of humanity for having made that decision.

But the campaign already being waged by people more than prepared to hate a man for having been chosen by Bush is underway. It is a campaign of distortion: of the french fry case, of the Endangered Species Act case, and of his work for various clients including government ones. It is not a campaign to explore his jurisprudence, but to cast it in the worst possible light, even if "possible" is far from "plausible." But if that is not your intention then I'm glad to hear it.

I had not myself ever given much attention to the cases at hand. But the mere fact that this was a Souter "originalist" opinion suggests that more is here than meets the eye. The further fact that the opinion takes explicit note of the fact pattern faced by Roberts suggests the same. My point is that even if Souter and Roberts are wrong it is possible for them to be wrong without their being less human, or giving us alarms about their devotion to our constitutional order. Souter is by any stripe a more "liberal" justice than O'Connor was; that should at least give liberals pause before raising needless alarms about the humanity of a lower court appellate judge who respects the precedent he set.
 

I quite agree, T. More. Roberts may stump every one of us guessers, including, possibly, the man who appointed him. President Eisenhower was more than a little upset about the Chief Justice that Earl Warren turned out to be. Such upsets are, I suppose, still possible. The optimist in me likes to think that a lifetime appointment can liberate a jurist from political quid pro quo. Though it's fun to discuss, truly only time will tell.
 

I think it's a pretty good indication of what a cipher we have here that we have to extrapolate from a single case like this.

Bush may have saved us from a long confirmation battle, but half the country is going to be damn unhappy several years from now. As to which half, who knows?

That's not really my idea of a bold political move, leading the country into a dark room without the benefit even of a box of matches.
 

Ms. Scheppele:

Thank you for an insightful analysis; the public and the pundits both find themselves reaching deep into the tea leaves as regards Judge Roberts. I find you have presented a convincing contrast between Roberts' style and judicial leanings and those of Justice O'Connor.

T. More:

You seem eager to ensure that Judge Roberts is portrayed in the best possible light.
 

From a very practical standpoint, what happened to this girl was a travesty; and it was appropriately dealt with as a travesty by the media, local citizenry, and the police, who changed their policy with no small degree of public embarassment. I'm not going to be too upset that a court refused to create an after-the-fact balancing test, that would have to be applied in case after case after case, when the conduct at issue here was in no danger of repetition.

The Fourth Amendment needs to exist alongside the public interest in allowing law enforcement officials to do their job pursuant to bright-line rules. While sometimes there's no option but to create a balancing test, I don't think we should rush to do it where there's no need.
 

"whether an individual has suffered an unreasonable seizure in light of the evidence that a crime, even a very minor one, had been committed"

If that's the issue, then I think Roberts should be arrested, before confirmation. Just as an object lesson.

And, also, the commenters, who think the Constitution should not apply, should be arrested, as well.

If the legislature has decided that an offense merits a small fine, while a police officer ought to have some discretion to handle a specific situation, a government agency should not be mandating several hours imprisonment in addition to the fine.
 

The reality is, Republicans control the White House and the Senate...

t. more,

I would hope that a Supreme Court nominee could withstand greater scrutiny than the "tough noogies" test.
 

Matt,

We don't disagree at all. But the test should also not be "unless I would appoint them I will filibuster." Ruth Bader Ginsburg is an extremely well qualified jurist. I would never, ever have appointed her. But President Clinton won the election, and he ought to have been able to confirm his choice for the Court, even with a Republican controlled Senate. That's been our tradition.

For the most part, we have lived that way except in circumstances of personal or professional misconduct that tainted the nominee, as with Fortas.

I don't have a problem with Chuck Schumer voting against the nominee, but if the Democrats try a filibuster on the grounds that he is an "extremist", rather than just somebody they disagree with, that's inappropriate.

Ruth Bader Ginsburg took a number of "extremely" liberal stances as an academic and as general counsel for the ACLU. But she's not an "extremist". She deserved confirmation. So does Roberts, unless some unexpected personal or professional misconduct issue were to arise, in my mind.

S ra,

I am eager to ensure that his opinions not be distorted so as to create a false impression. I thought leaving out that Justice Souter was aware of, and not apparently impressed by, the french fry case, in the relevant precedent here, was misleading.

One might still disagree with both Souter and Roberts here, and do so reasonably (though I don't see the Constitutional issue myself, as I indicated). But to suggest, as this post does, that Roberts was ignoring an invitation from Souter is just a very odd way to read these cases. It appears that the effort to do so is not to see him in the best light, nor even in the most accurate light, but to portray him as some sort of ideologue.
 

I think Bush made a political mistake in nominating what appears to be a reasonably mature mainstream candidate.
As he will likely pass through confirmation without major issue, it blows Rove's cover of blaming Democratic partisianship for the Plame situation.

In fact, it seems likely that had Rove had his usual influence, a more controversial nominee would have been more useful for keeping the lines drawn.I suppose this is what happens when Bush gets loose from his handlers.
 

I think Professor Scheppele has ignored an important fact. Judge Roberts is a CIRCUIT COURT judge, and Justice O'Connor is a SUPREME COURT justice.

Isn't it perfectly feasible that Judge Roberts felt that, whether he liked Lago Vista or not, he was bound by its precedent? (A sentiment which turned out correct, since Hedgepeth was upheld.) Justice O'Connor, on the other hand, was not bound by the precedent, beyond its stare decisis significance.

To compare the discretion of an appellate judge in the face of binding Supreme Court precedent and the discretion of a Supreme Court justice is to compare apples and oranges.
 

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