Judge John G. Roberts Jr., nominated this week for the Supreme Court, participated in hundreds of cases in his two years on the U.S. Court of Appeals for the District of Columbia Circuit. Following are excerpts from two opinions — one dissenting and one for the majority — written by Roberts:
The Toad Case
Rancho Viejo, LLC, Appellant
vs. Gale A. Norton, Secretary of the Interior, et al., Appellees
The Rancho Viejo development company, which proposed building a housing project in San Diego County, challenged use of the Endangered Species Act to protect the arroyo toad as an unconstitutional exercise of federal authority under the commerce clause. A federal trial judge's decision to dismiss the suit was upheld by a three-judge appeals panel, and in October 2004, the request to have the case reheard by the full court was turned down.
Roberts dissented on the denial of rehearing en banc, arguing that there was no interstate commerce rationale for protecting a species that lives only in California:
The panel's opinion in effect asks whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so. Thus, the panel sustains the application of the act in this case because Rancho Viejo's commercial development constitutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce….
Such an approach seems inconsistent with the Supreme Court's holdings in United States vs. Lopez … and United States vs. Morrison…. The court in those cases upheld facial commerce clause challenges to legislation prohibiting the possession of firearms in school zones and violence against women. Given United States vs. Salerno … such a facial challenge can succeed only if there are no circumstances in which the act at issue can be applied without violating the commerce clause. Under the panel's approach in this case, however, if the defendant in Lopez possessed the firearm because he was part of an interstate ring and had brought it to the school to sell it, or the defendant in Morrison assaulted his victims to promote interstate extortion, then clearly the challenged regulations in those cases would have substantially affected interstate commerce, and the facial commerce clause challenges would have failed.
That is precisely what the 5th Circuit concluded recently in rejecting the approach the panel took in this case…. As the 5th Circuit explained, "looking primarily beyond the regulated activity … would 'effectually obliterate' the limiting purpose of the commerce clause," and, under such an approach, "the facial challenges in Lopez and Morrison would have failed." …
The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "commerce … among the several states." … To be fair, the panel faithfully applied National Assn. of Home Builders vs. Babbitt …. En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit — a fact confirmed by that circuit's quotation from the NAHB dissent…. Such review would also afford the opportunity to consider alternative grounds for sustaining application of the act that may be more consistent with Supreme Court precedent.
The French Fry Case
Washington Metro Authority
In a zero tolerance case, the court upheld the arrest and booking of a 12-year-old girl for eating a French fry on the Washington, D.C., subway system, where consuming food is prohibited by law. Her lawyers challenged the legality of her arrest. In October 2004, Roberts wrote the majority opinion rejecting her contentions:
No one is very happy about the events that led to this litigation. A 12-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 4th and 5th Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm….
Committing an offense under District of Columbia law, such as eating in a Metrorail station, constitutes a "delinquent act." … The undercover operation [to catch offenders] was in effect on Oct. 23, 2000, when 12-year-old Ansche Hedgepeth and a classmate entered the Tenleytown/AU station on their way home from school.
Ansche had stopped at a fast-food restaurant on the way and ordered a bag of French fries — to go. While waiting for her companion to purchase a fare-card, Ansche removed and ate a French fry from the take-out bag she was holding. After proceeding through the fare-gate, Ansche was stopped by a plainclothes Metro Transit Police officer, who identified himself and informed her that he was arresting her for eating in the Metrorail station….
Although Ansche is correct that the Supreme Court cases applying rational basis review to classifications based on age all involved classifications burdening the elderly … she has presented us with no persuasive reasons to conclude that classifications burdening children should be treated differently. Heightened scrutiny is reserved for classifications based on factors that "are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." …
Youth is not such a factor — young age is quite often relevant to valid state concerns, as the Constitution itself attests…. Youth is not "so seldom relevant" to legitimate state concerns that we should assume that any law singling out the young is probably the result of anti-youth animus. Youth is more often relevant than old age, which we know does not trigger heightened scrutiny.
Nor are the characteristics that define the young markedly more obvious or distinguishing than those that define the old. In fact, the characteristics are simply opposite sides of the same coin — age. Youth is also far less "immutable" than old age: minors mature to majority and literally outgrow their prior status; the old can but grow more so….
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…. Ansche argues that these cases under the 4th Amendment do not resolve the equal protection claim, and that is surely correct: simply because a practice passes muster under the 4th Amendment (arrest based on probable cause) does not mean that unequal treatment with respect to that practice is consistent with equal protection….
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.