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Friday, July 22, 2005

Dalia Lithwick's response, and Beldar's reply, re Judge Roberts' Hedgepeth french fry case

FriesSlate senior editor Dahlia Lithwick has responded by email to my post from yesterday in which I challenged her assertion that Supreme Court nominee John G. Roberts' opinion in the Hedgepeth shows that "he seemingly finds arresting [twelve year old girls] for French-fry possession to be a cornerstone in good parent-child relations." I wrote, and continue to believe, that in so stating, Ms. Lithwick was telling a deliberate lie about Judge Roberts' views, of the same sort that anti-Roberts interest groups are peddling as a talking-point about this case; that contrary to her statement, in context Judge Roberts' opinion clearly shows that he thought the DC Metro's policies to be foolish and unwise; and that nothing in the opinion could support the contrary conclusion asserted by Ms. Lithwick:

My challenge is for you to either substantiate your statement with even a single paragraph from the opinion itself which even "seemingly" supports the view that Judge Roberts saw anything "good" (or wise or appropriate or admirable) in the local law and policies being challenged — or else admit that you can't.

Reprinted in full here with her permission is Ms. Lithwick's email reply from this morning:

Dear Mr. Dyer

Thank you for your thoughtful note.

It would seem you don't agree with my characterization of Judge Roberts' opinion in Hedgepeth. As you are aware, having read the opinion, Roberts concludes with the line, "that [no-citation] policy is rationally related to the legitimate governmental interest in ensuring parents are notified of their child's trangressions."

As you may surmise, I do not agree that there is even a rational relationship between the two. I find the notion that "detention until the parent is notified and retrieves the child" is a rational way to "correct straying youth" to be quite preposterous and wished to suggest as much to readers in a humorous fashion.

Your note suggests that you do, in fact, understand that I made this point through the use of a literary device called "hyperbole" or "exaggeration."

You may not agree that the "snark, satire, sarcasm, exaggeration" employed therein are humorous. And you may not agree with my characterization of Roberts' legitimate governmental interest analysis. Certainly in future I will try much harder to rise to all objectively measured international levels of humorousness. But I do thank you for keeping me informed as to when I have performed in a substandard fashion.

Congratulations on your terrific blog.


I cannot fault Ms. Lithwick for the graciousness or timeliness of her reply, and indeed I thank and compliment her for both. But I respectfully submit that she's ducked my challenge, failed to support her original statement, and instead tried to change the subject to a legal point on which she's also badly wrong.


Let's be honest, please, and all agree on the obvious: The anti-Roberts interests groups want to use the facts of this case to paint Judge Roberts as an insensitive, callous ogre. They want to impute to him an attitude that most Americans will find repulsive. Thus, their short-form talking points — like Ms. Lithwick's comment yesterday — certainly don't discuss any constitutional law. Compare:

Yesterday: Today:
[Judge John Roberts] doesn't appear to be crusading for a wholesale national retreat to the good old days of executing miscreant 'tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations). I find the notion that "detention until the parent is notified and retrieves the child" is a rational way to "correct straying youth" to be quite preposterous and wished to suggest as much to readers in a humorous fashion.

The first statement is an imputation of a specific, ugly attitude to Judge Roberts — an attack on his character. The second is an outline of a legal argument — one that's wrong, but that at least makes some reference to the relevant legal standard (here, "rational relationship" review for constitutionality). The first statement is indeed hyperbolic and exaggerated, and perhaps funny. But it isn't a way of making the same point that's in the second statement.

"[C]ornerstone in good parent-child relations" — that's a phrase that refers to personal values. "Cornerstone" here means something essential, upon which other things are (metaphorically) built. "Good" presumably is a synonym here for "wise" and "proper" and "appropriate" and "admirable." Even stripping away the sarcasm and hyperbole, Ms. Lithwick asserts as a factual matter that Judge Roberts affirmatively endorsed the DC Metro's zero-tolerance, no-citation policy — that he not only endorsed it as being a good, wise, proper, appropriate, and admirable way for the government to promote parent-child relations, but also as being an essential basis for good parent-child relations. That's telling a lie about what Judge Roberts actually said — it's the opposite of what Judge Roberts actually said about the wisdom of the policy — and Ms. Lithwick's dressing that lie up in snark and hyperbole doesn't suddenly change that lie into truth. Nor does her advancing a legal argument today change her personal attack from yesterday into a legal argument.


On to the law, then. Every American lawyer has had drilled into him/her that the Supreme Court's "rational relationship test" is by far the easiest test to pass in all of constitutional law. A search I just ran on the collected opinions of the U.S. Supreme Court shows that the phrase "rational relationship" turns up in 122 different cases — almost always in the context of a stupid, unwise law or regulation nevertheless being found constitutional. To qualify, the purported justification for the law or regulation need only find "some footing in the realities of the subject addressed by the legislation," and that can be an unwise, unfair, illogical, unarticulated, speculative, unsupported, overgeneralized, imprecise, illogical, unscientific, unjust, and even preposterous justification:

We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Nor does it authorize "the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." A statute is presumed constitutional, and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "'is not made with mathematical nicety or because in practice it results in some inequality.'" "The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific."

Heller v. Doe, 509 U.S. 312, 319-21 (1993) (citations omitted). I picked that case more or less at random, and partly because it was written by Justice Anthony "sweet mysteries of life" Kennedy; but there are dozens and dozens just like it.

The bottom line is this: When you're mounting the sort of constitutional challenge to a statute or regulation or policy that young Miss Hedgepeth's parents were, unless you can convince the courts that some higher level of scrutiny than "rational relationship" is required, you're almost certainly going to lose. Young Miss Hedgepeth had excellent lawyers for her appeal; they knew this; they spent all their efforts trying to avoid "rational relationship" review, because they knew that under that standard, they'd definitely lose. But they failed, so they did lose.

At least what Ms. Lithwick came up with today as a criticism of Judge Roberts is a legal argument, rather than the sort of wholly unjustified ad hominem attack she made on him yesterday. But it would get an F on any con law exam at any law school in the country. Even Larry Tribe would give you an F if you tried to say on one of his exam papers that "preposterous" is enough to negate "rational relationship" under current law; he might agree with Ms. Lithwick that that's what the law ought to become if they appeared together on some cable news show, but I seriously doubt that he has the juevos to ever sign a brief so stating, for if he did, his credibility as a constitutional scholar would evaporate. Not even Justice Kennedy would go so far in making legislation subject to the whims of judges; in fact, I don't think you could get Justices Stevens or Ginsburg to sign on to that, nor would Justices Brennan or Marshall in their day.

Still, I much, much prefer this sort of argument. When you say to the American people, "Judges should be able to overturn laws based on their own personal whims about what's wise and fair, and I oppose Judge Roberts because he disagrees with me on that," then the American people can squint hard at you, tilt their heads to one side, and decide whether to cock their shotguns before escorting you off their premises.\*/ That's much better than telling a lie — which I continue to believe Ms. Lithwick did yesterday.


\*/That's snark, sarcasm, exaggeration, and hyperbole. I no more want to see Ms. Lithwick threatened with a shotgun than I would want to see one of my daughters arrested for eating a french fry.

Posted by Beldar at 01:01 PM in Law (2006 & earlier), Mainstream Media | Permalink


Other weblog posts, if any, whose authors have linked to Dalia Lithwick's response, and Beldar's reply, re Judge Roberts' Hedgepeth french fry case and sent a trackback ping are listed here:

» Dahlia Lithwick: Dishonest or Utterly Useless from Patterico's Pontifications

Tracked on Jul 22, 2005 2:25:43 PM

» Beldar gives Dahlia Lithwick a Lesson in the Law from Betsy's Page

Tracked on Jul 23, 2005 8:15:24 PM

» Independence Day from No Oil for Pacifists

Tracked on Jul 26, 2005 11:31:52 PM

» Georgetown Law Prof. Peter Rubin distorts Judge Roberts' opinion in the Hedgepeth "french fry case" from BeldarBlog

Tracked on Aug 14, 2005 3:18:38 PM


(1) craig mclaughlin made the following comment | Jul 22, 2005 1:22:47 PM | Permalink

The heck with Judge Roberts, Beldar for Scotus!

(2) Dwilkers made the following comment | Jul 22, 2005 2:05:58 PM | Permalink

...and partly because it was written by Justice Anthony "sweet mysteries of life" Kennedy...

OK, you owe me a keyboard for that one Beldar. Now I've got soda pop all over my desk.

(3) Ben made the following comment | Jul 22, 2005 2:07:52 PM | Permalink

As the left (and right, but to a lesser extent) continue to move into "Anyone who holds opinion X is not just wrong, or misguided/mistaken, but eeeeeeeeevil", rational basis review will likewise move toward Justices making personal judgments about the wisdom of a law and then stating that because THEY cannot conceive of a good reason for the law, there must not be one. Ms. Lithwick has shown that type of fuzzy thinking today. (Or maybe she sluffed ConLaw a lot. Your call.)

(4) wayne made the following comment | Jul 22, 2005 2:11:58 PM | Permalink

Apparantly, Judge Roberts advised Jeb Bush on legalities for the vote count challange in the 2000 election.

If you really want to know what is going to get the Commiecrats undies all knotted, check out this story. As soon as this gets any noise, the moonbats at moooveon.boredgasm will fly it on their war banner as they go screaming into the fray.

(5) James B. Shearer made the following comment | Jul 22, 2005 3:07:52 PM | Permalink

I think the use of the word "cornerstone" was a tipoff that Lithwick's original statement was hyperbole. As for her further argument in her email I agree it is unconvincing to say the least.

Btw Beldar suppose Souter had voted the other way in Atwater vrs Lago Vista making O'Connor's dissent the majority opinion. How do you think Roberts would have ruled in this case?

(6) Carl Pham made the following comment | Jul 22, 2005 4:04:41 PM | Permalink

Oh you nailed her, Beldar, and she knows it right well. There's egg all over Lithwick's face. The very haughtiness of her reply and her grasping at the pathetic last defense of the bullshitter ("Geez, can't you take a joke?") are clear and convincing evidence.

Which is not news to you, of course. Your moderation in reply is clear evidence of that.

I think Lithwick is essentially a clear-thinking person, and very talented, very sharp. She has written some beautifully incisive analyses for Slate, stuff that illuminates how the law works for us reg'lar folks very nicely.

But she's been a bit seduced by the Dark Side. She's found her legal credentials and quick wit give her amazing authority and gravitas when speaking from her journalist's perch at Slate, an authority much harder to earn in the courtroom, in front of equally-credentialled and skeptical judges.

She's become a little inebriated with that power, and has started to lose in her writing that essential distinction between what you might call her professional opinions as a skilled lawyer and her personal opinions as Dahlia. Why not? The majority reading Slate can't tell the difference. Only her peers (e.g. you) can.

It's a sad corruption of personal integrity that tempts successful professionals all too often. I've seen it happen many times in my field (science): good scientists begin offering their personal opinions as professional (i.e. scientific) opinions, just because the uninformed majority will often accept them as such.

It takes a pretty high level of personal integrity to resist this temptation, and clearly mark off for people where you speak as a professional, an expert, and where you're just spouting off personal opinion like anyone else. I don't fault Lithwick too much for succumbing to the temptation -- I've done it myself, to my shame.

She's young, too, I think. She may learn better over time. Or her seduction by the Dark Side may become complete, and she may don the breathing mask. Who knows? I hope the former.

(7) Carl Pham made the following comment | Jul 22, 2005 4:20:55 PM | Permalink

Oh yeah, to return to Roberts and "rational basis": I think your sensitivity to Lithwick's abuse of the word "rational" -- in essense, morphing it from its legal meaning (as I understand it) of "not made up out of thin air" into its quotidian meaning of "sensible" -- is evidence of something important: Roberts' supporters are going to have trouble making that distinction clear to the great public.

Most of us are going to be tripped up by an unfortunate coincidence between that legal phrase and a meaning in common speech that is completely different. When Roberts says this asinine policy had a "rational" connection to a sensible public policy goal (parents being involved in raising their children), most of us are not going to ask the nearest lawyer to define what the word "rational" means in this context. We're just going to jump to a very wrong conclusion, and that is going to hurt this nominee, although not, I think, fatally.

It would be wonderful if a lawyer as clear-thinking as, well, yourself, would write a nice, calm article explaining what the hell this rational relationship thingy is, and why in plain words Roberts could have been obliged to uphold the constitutionality of a dumbass law, and a newspaper were to publish it.

But I realize I am merely dreaming here. Still, if Lithwick's integrity is not wholly gone, she might be willing, to make amends for her lapse of integrity, to support publication of a special article in Slate. That would do the world a lot of good, since the typical readership of Slate is not going to stumble across BeldarBlog.

(8) craig mclaughlin made the following comment | Jul 22, 2005 4:42:39 PM | Permalink

"It's a sad corruption of personal integrity that tempts successful professionals all too often. I've seen it happen many times in my field (science): good scientists begin offering their personal opinions as professional (i.e. scientific) opinions, just because the uninformed majority will often accept them as such."

Like Paul Krugman, For example.

(9) Carl Pham made the following comment | Jul 22, 2005 6:11:15 PM | Permalink

Like Paul Krugman, For example.

[retching noises]

To the Dark Side, long ago Darth^H^H^H^H^HProf Krugman turned.

(10) MaDr made the following comment | Jul 22, 2005 6:31:57 PM | Permalink

Another fine pantsing (exposing) of the Left. When we're caught in a lie, oh well, that was just hyperbole, exaggeration, etc.

Now let's change the topic.

If you're not adept or informed enough to catch in the MSM, only a rock could miss it in the leather-winged lunarians' (the Left)comments on middle-conservative blogs.

BTW- I find it humorous that the Left portrays InstaPundit (and approx half of all so designated blogs) as "conservative". No sir-ee. Libertarians are NOT conservatives. They have some "conservative" positions, but they also have some "Left" (todays' Left is no longer "liberal")positions.

To me, this does not make them (Libertarians)either "conservative" or even "middle". They're a whole different "cat".

(11) nk made the following comment | Jul 22, 2005 9:49:14 PM | Permalink

Dear Mr. Beldar:

I fear that now you are the one that has over-argued his case. I agreed with your previous post that Ms. Lithwick was over the top in her criticism of Judge Roberts. And I also agreed that her explanation today was disingenuous.

You should have stopped when you were ahead. I too remember being taught that "rational" meant merely "not insane". However, the law is not only for lawyers and judges. The Court's opinion, itself, describes the public outcry and the change in policy by the city. It is one thing for the Court not to create a tort action out of the Bill of Rights and another one entirely to defend the term of art or not "rationality" of the child's arrest. The vast majority of rational people in this country will tell you this: The pig should have told her, "Sweetheart, I am a police officer. You are not allowed to eat on the train. Please put you fries away and eat them when you get off the train." (And I believe very strongly that they would say "pig".) BTW: This is one way Atwater v. Lago Vista is distinguishable -- Mrs. Atwater had received at least one prior warning from the arresting officer.

I believe, Mr. Beldar, that if you continue to try to explain the term of art "rationality" of the child's arrest to the American people that you might be escorted off the premises. I will leave the shotgun out of it -- that too, in my opinion, was over-arguing your case. (Actually there are only one or two shotguns with exposed hammers being made these days. It should be "the sound of the safety being clicked off".)

(12) Jon Sandor made the following comment | Jul 22, 2005 11:48:48 PM | Permalink


What "the pig" should or should not have done is not the issue here and was not the issue before Roberts.

I don't know what social set you run in, but most Americans take a skeptical view of those who refer to police officers as "pigs".

In fact, that type of language does not advance your argument no matter who it is aimed at.

(13) vnjagvet made the following comment | Jul 22, 2005 11:50:36 PM | Permalink


As I believe most lawyers understand and appreciate, Judge Robert's opinion was correct as a matter of law because not every fool decision of a police officer is an unconstitutional abuse of power.

Unfortunately, that legally correct result does not compute with the general wisdom of ordinary non-lawyers.

An ordinary pundit without a law degree is certainly prone and free to ridicule anyone who participated in what a layperson would see as a travesty of justice.

On the other hand, a pundit with a Stanford legal education and experience clerking for a Federal Court of Appeals judge (the same position in which Judge Roberts was serving when he wrote the opinion in question), Beldar suggests, may have other responsibilities to her readership. Among these are educating the readership about the "rationality" of the child's arrest so far as the Constitution is concerned. That, of course, was what the court had to decide. Snark, misdirection and "piling on" really isn't appropriate in such a situation from one so talented and knowledgeable as Ms. Lithwick.

No, both Beldar and I think she's better than that, and I am sure Judge Hug, her former mentor, would agree.

(14) ed made the following comment | Jul 23, 2005 10:29:23 AM | Permalink


Frankly I'm absolutely opposed to Roberts for the SCOTUS because I do not at all believe that he is a conservative or that he will remain a conservative during his tenure.


(15) vnjagvet made the following comment | Jul 23, 2005 10:53:15 AM | Permalink


At least you aren't unsure. As my mom used to say about me. Often wrong, never in doubt.

(16) Jon Sandor made the following comment | Jul 23, 2005 1:34:48 PM | Permalink


I have seen your comments scattered on blogs all across the right side of the blogosphere.

I have never seen a single one that was worth anyones time to read.

Why don't you establish a record of saying something worthwhile? Then people might be more inclined to pay attention to you.

(17) Patterico made the following comment | Jul 23, 2005 3:34:41 PM | Permalink

BTW: This is one way Atwater v. Lago Vista is distinguishable -- Mrs. Atwater had received at least one prior warning from the arresting officer.

Oh, it's distinguishable in numerous other ways. The seatbelt violation took place in a car; the french-fry eating took place on the D.C. Metro. The names of the cases are completely different. And so forth.

There's just no meaningful way to distinguish the two.

(18) jvp made the following comment | Jul 23, 2005 7:48:11 PM | Permalink

As usual, Beldar is very much on the mark. Ms. Lithwick did change the proposition after Beldar's initial challenge. One caveat, however. The nature of rational basis review is changing. It used to be a "toothless scrutiny". Since at least Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), however, the Court has sometimes used rational basis scrutiny to strike down laws it didn't like. See also Lawrence v. Texas, 539 U.S. 558, 585 (O'Connor, J., concurring). This has spread to the state courts. See, e.g., Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) (Massachusetts law denying same-sex marriages struck down as lacking a rational basis).

Thus, the statement that a judge may strike down a law based on personal whim is not quite the hyperbole Beldar intended. It is the new temptation for judges. What is comforting, at least at this point, is that Roberts does not appear to be so tempted.

The movement toward judicial oversight of legislation within the rational basis review is also related to the movement away from judicial oversight within the intermediate and strict scrutiny tests. See, e.g., the Michigan law school affirmation action case. When the result under the traditional application of the test is not to their liking, they modify the test (without acknowledging that that is what they are doing).

What we are seeing is actually a movement away from the traditional Carolene Products double standard toward a judiciary that is both activist (Lawrence v. Texas) and deferential (Kelo v. City of New London), depending on what outcome they are looking for.

(19) Walter E. Wallis made the following comment | Jul 24, 2005 9:46:30 AM | Permalink

Too often, the courts have taken the pressure off legislations to correct stupid law. It is possible, even probable that a law can be stupid and constitutional. A representative legislature would correct bad law.

(20) Palooka made the following comment | Jul 25, 2005 10:48:30 AM | Permalink

Beldar for Supreme Court Justice!

Ouch... Must suck to be Lithwick today =)

(21) Eh Nonymous made the following comment | Jul 29, 2005 8:40:39 AM | Permalink

Beldar: I too congratulate you on your amazing, prolific, outstanding etc. blog.

I'm a fan of Dahlia, small f.

I can't believe some of the comments to this post, and indeed gave up reading them after a half dozen. Dan suggested that the Left, _more than the right_, is guilty of demonizing those who hold views they don't like. Wow. I'd hold a contrary opinion; we have some stupid, stupid, stupid leftists out there, but the whole _point_ of leftyism (if I might paint with so broad a brush) is...

we don't condemn people to hell for being wrong. We argue with them, disagree, chant, vote, organize, bicker, and sometimes throw pies (NB: this is wrong, although funny when the recipient is a jerk; and aren't we all of us jerks sometimes), but we don't actually use the language of sin to describe political views. Well, I do, but I'm an atypical lefty, I swear.


quite a lot of analysis, over a joking column by a joking analyst. She disagrees about the rational basis test; isn't the whole nature of our contemporary jurisprudence that reasonable judges, amazingly enough, can AND IN FACT DO disagree about whether something passes that test? Scalia and Kennedy, for example, consult their moral touchstones when considering what "rational" might mean in analyzing government regulation of private conduct.

So: I'm persuaded - not by Roberts' opinion, which I've only skimmed, but by defenders of it which discuss the strongest possible argument that the law had a valid and rational basis - that the opinion was correctly decided, no matter how contemptible the immediate legal result.

I also recognize why some legal observers would prefer not to depend on public outrage and legislative heiny-covering to get to appropriate results. I mean, my god, look at what people are outraged by and what they're not (Michael Jackson/Terri Schiavo on one hand, and pension fund manipulation on the other) and look at what Congress does and doesn't take action on (Schiavo again, and pension fund manipulation on the other. Okay, they are, but far too late, and too weakly, and the wrong way).

So then.

Um, yours is still a nice blog, with many more hits than mine. :)

Regardless: keep up the good work.

Eh N.

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