Judge Roberts, Ansche Hedgepeth & A French Fry

Here is one of the best summaries of this now famous case being cited for and against President Bush's Supreme Court nominee John Roberts.

Roberts' French fry Ruling?  Super-size It.  from The Oregonian July 24, 2005, by DAvid Reinhard.

After Bush nominated Roberts to the Supreme Court, the People for the American Way said that, in upholding the arrest of "a 12-year-old girl for eating a single french fry," Roberts "appeared dismissive of the serious concerns raised by the use of police power."

Sen. Ted Kennedy may soon roll on to the Senate floor to inform us: In John Roberts' America, 12-year-old-girls would be arrested, handcuffed and taken downtown by cops for eating a single french fry in public.

Yet the "subway snacker" case highlights not only his qualifications for the Supreme Court, but also the kind of restraint judges should show and Bush has promised in his judicial picks.

The facts in Hedgepeth v. Washington Metro: On her way home from school, 12-year-old Ansche Hedgepeth, was arrested, for eating, yes, a single fry in a Metro station. Her shoelaces were removed, and she was taken to a juvenile processing center. She was booked and detained until her mom came three hours later. Frightened and embarrassed, Ansche cried throughout her ordeal. Ansche's lawyers claimed her arrest violated the Fifth Amendment's equal protection guarantee -- an adult would have only been given a citation -- and the Fourth Amendment's protection against unreasonable seizure.

Again, Roberts' critics think the case begins and ends with a single fry. Surely, a judge should step in and do justice in this case of imprudent if not outrageous police power. He should have righted this manifest wrong. Little girls should not be nabbed for eating a single fry in a train station. Not in Ronald McDonald's America.

In Roberts' more modest jurisprudence, however, judges aren't selected to write their preferred results into decisions or even do justice in a cosmic sense. They're to follow the law and Constitution and show due deference to other branches of government.

Roberts didn't like what happened to Ansche. "No one is very happy about the events that led to this litigation," he wrote for a three-judge panel of the U.S. Court of Appeals for the District of Columbia, in affirming a district court ruling. But he resisted the temptation to follow his own feelings and play policy-maker. His task, he saw clearly, was to consider whether this arrest violated the Constitution.

Did the disparate treatment that Ansche received violate the Fifth Amendment's equal protection guarantee? No, under the court's existing "rational basis standard," a policy that discriminates based on youth must only be rationally related to a legitimate governmental interest, and the presumption is with the government in deciding this. Roberts held that policy was rationally related to the goal of making parents aware of their kids' transgressions. As for a Fourth Amendment violation, how could her arrest be unreasonable when there was clearly "probable cause." The fry.

Roberts and judicial restraint champions the case doesn't begin or end with the single fry. It began because Metro was receiving complaints about bad behavior from students at this Metro stop. It therefore initiated an undercover operation to enforce the system's "zero tolerance" of certain violations such as eating and drinking in the Metro. Arresting rather than citing minors was the established policy. As Roberts, "The district court had and we too may have thoughts on the wisdom of this policy choice . . . but it is not our place to second-guess such legislative judgments." Exactly.

Roberts also understood that he courts are not the branch to right policies that may be dubious or even outrageous but not unconstitutional. As he pointed out, "the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry."

Roberts showed a becoming modesty about the role of judges and a faith in other branches of government that might have thrilled Supreme Court Justice Oliver Wendell Holmes. After lunching with Judge Learned Hand, he was heading off when Hand, called out: "Do justice, sir, do justice."

Holmes stopped and lectured Hand: "That is not my job. It is my job to apply the law."

Super-size that sentiment, please.

David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com

What do you think of this case?

Here are some more links about this case:

Here are the court documents from the case.

This is a lengthly post on Constitutional scholar and Yale Law professor's Jack Balkin's blog Balkinization about Judge Roberts and his French fry case ruling.

Here is the original Washington Post report on the arrest of the now  French fry felon, Ansche Hedgepeth, then 12 years old.

This is a Washington Post report on how this unusual case has put Judge Roberts even more in the spotlight.

Image credit: Ansche Hedgepeth, 12, arrested for eating a french fry in a subway station.
(WASHINGTON POST PHOTO, 2000)