An evening I spent in 1987 at the Association of the Bar of the City of New York taught me a lot about judging judges—very much including the new prospective chief justice of the United States. The speaker was Supreme Court Justice William Brennan, paying tribute to an earlier high-court Justice, Benjamin Cardozo, one of the wisest jurists ever to sit on any bench.
Cardozo, in a lecture, “The Nature of the Judicial Process,” had cited a tradition of judging, said Brennan, in which “the judge was thought to be no more than a legal pharmacist, dispensing the correct rule prescribed for the legal problem presented. . . . Into this formalist conception of law, Cardozo breathed the wisdom of human experience. . . . He rejected the prevailing myth that a judge’s personal values were irrelevant to the decision process.”
Since then, I have taken particular notice of judges who, beneath their black robes, remember they are human beings, like the defendants before them. At the top of that list is U.S. District Court judge Jack Weinstein of Brooklyn, who has been on the bench for 38 years and should have been on the Supreme Court long ago.
For one of many examples of how Weinstein rules “in the interest of justice”—realizing that even if the crime in the case before him is the same, each defendant can be different—see “Judge Finds Woman’s Rehabilitation Grounds to Avoid Prison Term,” on the front page of the August 11 New York Law Journal. Also see Judge Weinstein’s own New York Law Journal article “When Judges Are Asked to Do Evil” (October 28, 2004).
In chilling contrast, let us look at Bush nominee for chief justice John Roberts. When he was a judge, on the District of Columbia Circuit Court of Appeals, he ruled significantly in a 2004 case, Hedgepeth ex rel. Hedgepeth v. Washington Metropolitan Area Transit Authority. As you consider his conception of justice, would you confirm John Roberts as chief justice of the United States, now that he has been nominated by Bush?
The facts of the case are detailed by constitutionalist John Whitehead, president of the Rutherford Institute, which helped provide a lawyer to the mother of the plaintiff: “On October 23, 2000, 12-year-old Ansche Hedgepeth . . . arrived at a Washington, D.C., Metro station to catch the train home.” She put one of the french fries she’d bought in her mouth.
“Immediately, a police officer demanded she put down her french fries and remove her backpack. Although Ansche never resisted or failed to cooperate with the officer, she was told to place her hands behind her back and she was handcuffed.” Ansche was informed she had broken the law against eating in a subway station, and her shoestrings were removed by a policeman, who searched her.
“Led to a police car,” she was “taken to the police station, where she was interrogated, booked, fingerprinted and finally released into her mother’s custody after being detained for several hours.”
The likely future chief justice John Roberts ruled for a unanimous three-judge panel that Ansche’s Fourth Amendment and equal-protection rights had not been violated. Ansche’s mother has pointed out that if an adult had committed the same crime, he or she would have been issued an appearance ticket—not treated like a dangerous felon.
Here is what Judge Roberts said in his decision: “No one is very happy about the events that led to this litigation.” Indeed, he added, this 12-year-old girl “was transported in the windowless rear compartment of a police vehicle to a juvenile processing center. . . . The child was frightened, embarrassed and crying throughout the ordeal.”
However, righteously said John Roberts, revealing the core of his humanity under his black robe: “[The arrest advanced] the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”
On Fox News Channel’s July 20
Special Report With Brit Hume, Harvard law professor Laurence Tribe—whose books on constitutional law have often been quoted in Supreme Court decisions—addressed John Roberts’s disposition of this flagrant criminal act by 12-year-old Ansche Hedgepeth:
“Saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn’t that [decision by John Roberts] violate [the child’s] liberty?”
He was referring to the essential constitutional interest in personal liberty that is particularly embedded in the Bill of Rights. Without those 10 amendments, the Constitution would not have been ratified.
Tribe went on to say, “The country needs to know, not how he will rule in particular cases—God knows, in the next 30 years, cases we can’t even dream of will come before him— but what will be his starting premises about the Constitution?” (Emphasis added.)
As Tribe put it, “If you’re a minor, one french fry and you’re busted, [for the judge to show no discretion] needs some explanation.”
Roberts gave his explanation in his decision. Ansche Hedgepeth was a delinquent! She and her parents must be taught a lesson about our immutable rule of law. “The question before us,” Roberts wrote for the D.C. Circuit Court of Appeals, “is not whether these [Metro system] policies were a bad idea but whether they violated” the Constitution. “We conclude they did not.”
When Justice William Brennan came to the end of his 1987 speech to the Association of the Bar of the City of New York, he had no idea that one day the specter of John Roberts would loom over it. But consider John Roberts as you read this:
“The Framers bequeathed to us a vision of rulers and the ruled united by a sense of their common humanity. . . . We cannot console ourselves with the belief that reliance on formal rules alone is ever sufficient to be faithful to the vision of the Framers.”
And Judge Jack Weinstein, writing of the responsibility of jurists in “When Judges Are Asked to Do Evil,” reminds his colleagues on all our courts: “One path is unacceptable: silent acquiescence. The duty to speak up in protest is required of us, the judges, as of every person in this great country who is called on to do evil.”
How many such protests—in the interest of justice—are likely from a Chief Justice John Roberts on the Supreme Court during the next 30 years or more?
This article from the Village Voice Archive was posted on September 6, 2005