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

My faithful readers will no doubt conclude that I've become obsessed with U.S. Circuit Judge (and SCOTUS Associate Justice-nominee) John G. Roberts, Jr.'s opinion for a unanimous three-judge panel of the D.C. Circuit in the "french fry on the Metro" case, Hedgepeth v. Washington Metropolitan Area Transit Authority, 386 F.3d 1148 (D.C. Cir. 2004). They're right. But the Left gives me new cause to renew my obsession with each passing week! And my newest target, Prof. Peter Rubin, is indeed a slippery one, but no fish in a barrel.

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Here's the recap, which my regular readers (or those only casually interested) may wish to skip:

On what coincidentally turned out to be the day before President Bush announced Judge Roberts' nomination to succeed retiring Justice Sandra Day O'Connor, I'd written a post entitled "Not my job!" I quoted Justice Thomas' dissent in Lawrence v. Texas, and I gave this advice to Dubya with respect to the then-still-open slot on the Court (boldface in original):

I am not empowered to fix this. That's the essence of what Justice Thomas said, and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming. The result will certainly, inevitably be that many things that ought to be fixed — by Congress or state legislatures or those other entities mentioned above — just won't get fixed, or may get bollixed up even further. Sometimes those entities are obviously falling down on the job, with heartbreaking or alarming or unfair results. But when the Supreme Court seizes power that doesn't belong to it, and exercises it in a way that can't be effectively checked by the voters or the other branches of government, then over the long run, not just the rule of law but our entire system of government are likely to perish.

When Judge Roberts' nomination was announced on the very next day, I quoted rejoicingly from the opening paragraph of his opinion in Hedgepeth in a post entitled "Judge Roberts can say 'I am not empowered to fix this' despite the temptations." I thought then — and continue to think, after acquainting myself better with Judge Roberts' other written opinions as a U.S. Circuit Judge  — that this case gives a marvelous insight into what kind of Supreme Court Justice he'll make.

But it was already clear from pre-nomination speculation about Judge Roberts that the Left would do its very best to use Hedgepeth to alarm, rather than to reassure, the American public. It was an obvious tool for that sort of mischief, precisely because the same natural and very powerful sentiments that might have prompted an activist judge to twist the Constitution to grant poor little Ansche Hedgepeth some relief can also be used to make Judge Roberts seem quite the ogre — simply because he voted against her!

Here is how the Washington Post briefly and quite accurately described Judge Roberts' opinion in Hedgepeth on October 27, 2004 — shortly after it was released, and well before Judge Roberts became a SCOTUS nominee (boldface mine):

The U.S. Court of Appeals for the District of Columbia yesterday upheld the arrest of a 12-year-old girl by Metro police for eating a french fry in a train station in fall 2000.

The court affirmed a lower court ruling that Metro's "zero-tolerance" policy and the child's subsequent arrest were constitutional, although Judge John G. Roberts made it clear that he was no fan of the policy.

But once Judge Roberts became the nominee, the Left and its MSM allies immediately began broadcasting what may be aptly called the "Roberts wants to jail children for eating french fries"-meme, and they continue to do so. On two successive days last month, for example, WaPo published a balanced and factual discussion of Hedgepeth and a ridiculously over-the-top and inaccurate op-ed (which concludes that Judge Roberts is too heartless even to qualify as a Scalia-type ogre).

Playing whack-a-mole with the idiots-at-law of the popular press is a fun and worthwhile pass-time for lawyer-bloggers, but I'm particularly keen to challenge distortions being made by those who possess law degrees (and therefore should know better) and who occupy bully pulpits from which they've spread their distortions on legal matters. Thus, I could not let pass this snarky comment about Hedgepeth by Slate's senior editor, Stanford Law grad, and frequent legal commentator Dahlia Lithwick:

[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).

Trying to illustrate the line between justifiable snark and outright distortion, I posted a challenge to Ms. Lithwick. I asked her "to either substantiate [her] 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 [she] c[ould]n't." Ms. Lithwick responded promptly, graciously, and (I believe) wholly inadequately by email, and I posted our email exchange, along with some of my further observations, to let my readers decide (and comment upon) whether she'd adequately met my challenge.

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But comes now Peter J. Rubin, a tenured professor who teaches constitutional law at Georgetown University Law Center. Professor Rubin is a graduate of Harvard Law School, where he was an editor of its prestigious law review, and served judicial clerkships at both the Circuit and Supreme Court levels — impressive credentials that, coincidentally, he shares with Judge Roberts. Prof. Rubin was also the founder of the American Constitution Society for Law and Policy, self-described as "one of the nation's leading progressive legal organizations," and he apparently had a high-profile private appellate practice before becoming a law professor. In an August 11th appearance on PBS' News Hour program, Prof. Rubin proved himself just as eager to misrepresent Judge Roberts' opinion in Hedgepeth as Dahlia Lithwick had been a few weeks earlier — but even more baldly so, without any trace of snark, and to a broader audience (boldface mine):

But from opinions [Judge Roberts has] issued in the court of appeals, for example, we see him relying on methods that result — for example, there's a case now that's somewhat well-known about the arrest of a junior high school, an African-American junior high school girl here in Washington for eating a single French fry on her way home in the Metro station.

And he said that was a reasonable seizure of her, the arrest of her under a mandatory policy. And the method he used to reach that result, it's just a tea leaf, but it is a conservative method not unlike that used by, for example, Justice Antonin Scalia.

Indeed, the case is now "somewhat well known" enough so that, to her considerable credit, even the News Hour's Margaret Warner knew better than to leave their viewers with Prof. Rubin's undiluted misimpression. She quickly pointed out, correctly, that Judge Roberts had actually written words to the effect that "it's not up to us [judges], it is not our place to second guess such legislative judgments." And Prof. Rubin's conservative counterpart on the segment, Prof. Douglas Kmiec of Pepperdine (who once worked with John Roberts as a government lawyer), politely expanded on Ms. Warner's polite correction:

I don't think we should super size the McDonald's case, however interesting it may be.

The fact of the matter is, in that particular case the challenge was is that the Metro in Washington had drawn a distinction on the basis of treating adults different than children, and the simple legal issue was whether or not it was rational for the government to draw that distinction, and Judge Roberts, following precedent, following well-established constitutional doctrine, held that it was.

McDonald's actually wasn't involved — young Miss Hedgepeth purchased her after-school french fries from a vendor named "Cafe Med" — but Prof. Kmiec's description was otherwise accurate. Had I been in his place, though, I likely have reacted less like a hale fellow well met, and much more like Bob Dole — that is, I'd probably have snarled something like, "Stop lying about Judge Roberts' record!"

So I snarled something very like that in an email to Prof. Rubin late that same evening. (Law faculty members can usually be emailed at least indirectly through their law school websites, although some such websites don't make actual email addresses public, and I shan't make Prof. Rubin's email address public either.) Prof. Rubin replied promptly, graciously, and (in my estimation) disingenuously. But when I then asked for his express permission to quote in full our initial exchange and anything further he wished to add, he declined. I'll honor his preference, but I'll send him another email with the URL for this post; he's more than welcome to use my comments section to respond if and as he chooses; and I repeat here my offer to publish even more prominently than in my comments section any rejoinder that he may wish to offer.

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Unlike Ms. Lithwick's offhand reference in Slate, Prof. Rubin's description of the case in his News Hour TV appearance was not an occasion where misinformation can be even partially excused as snark, sarcasm, or exaggeration. In being paired opposite Douglas Kmiec, he was obviously the News Hour's choice of a "progressive" (i.e., liberal and prominently Democratic) legal talking head, and his credentials do indeed make him well-suited for that role. But even in that role, when in a forum like this one, his ethical obligations as a lawyer and a legal educator oblige him to be at least as careful to avoid factual distortions as he ought to be in arguing before an appellate court. And friends and neighbors, while I probably haven't seen or participated in nearly as many appellate oral arguments as either Prof. Rubin or Judge Roberts, I can definitely assure you that any advocate who played this fast and loose with the facts in an oral argument would be sliced into confetti, and deservedly so, by the appellate judges before whom he was arguing.

Let's start with the easy part — Prof. Rubin's assertion of fact that Judge Roberts, in Hedgepeth, "said that was a reasonable seizure of her, the arrest of her under a mandatory policy." The overwhelmingly obvious meaning of that assertion, when made to a lay audience, is that Judge Roberts thinks it's "reasonable" — a good thing, wise, proper, appropriate, sensible — to arrest first-offender french-fry-eating schoolgirls. But anyone who has actually read the first paragraph, or even the first sentence, of Judge Roberts' opinion in Hedgepeth knows that's exactly the opposite of what he wrote. At this most basic level — and that's by far the most important level, when attempting to educate a lay audience about legal matters — Prof. Rubin has engaged in such a gross inaccuracy that one must doubt that it could have been accidental. It's like writing, "Lincoln thought the dissolution of the Union was a fine idea," or "Churchill was a big Nazi-sympathizer."

But let's shift gears, out of lay impressions, and instead into constitutional law. Prof. Rubin's reference to the "mandatory policy" is an unmistakable signpost to the Hedgepeth opinion's equal protection holding; and while there were indeed several other holdings in the opinion, that was by far the most important one, since it addressed the merits of the main argument raised by the Hedgepeth family's lawyers. I won't repeat here my earlier response to Ms. Lithwick about "rational relationship" constitutional analysis, but will summarize it simply by noting that under long-established constitutional principles — under the same general method of constitutional analysis used not just by Justice Scalia, but by, for instance, Chief Justice Burger in Brown v. Board of Education — the D.C. law and policies had to be completely irrational in order to be unconstitutional. That a statute is profoundly silly, or massive overkill, or downright stupid, or very unwise is not a sufficient basis to rule it a violation of the Fourteenth Amendment's Equal Protection Clause (or, as here in a case not involving a State, the Fifth Amendment's comparable component), at least where the classification being made by that statute is based on the difference between minors and adults (here, the "mandatory policy" to which Prof. Rubin referred, whereby first-offender minors were arrested but adults were only ticketed). Any professor who teaches constitutional law must understand these distinctions. And any professor of constitutional law would flunk a law student who conflated them the way Prof. Rubin did on the News Hour. Saying, or implying, that Hedgepeth held that the mandatory arrest policy was "reasonable" is a gross misdescription of that case's equal protection holding — and again, such a huge misstatement when coming from one with credentials like Prof. Rubin's that one must seriously suspect it to have been an intentional and knowing distortion, rather than an instance of innocent mistake or misspeaking.

Hypothetically, however, Prof. Rubin might object that I've misunderstood him. Hypothetically, he might protest that despite his reference to the "mandatory policy," he wasn't actually referring to Hedgepeth's equal protection holding, but instead to one of its subsidiary holdings. The Hedgepeth family's lawyers, he might (correctly) point out, had made not just an equal protection argument, but also a separate argument under the Fourth Amendment, which prohibits "unreasonable searches and seizures." Hypothetically, Prof. Rubin might defend his comment on the News Hour by arguing that Hedgepeth held that young Miss Hedgepeth's arrest, a Fourth Amendment "seizure," was indeed "reasonable." And such would be a very clever argument, were Prof. Rubin (hypothetically) to make it. He (hypothetically) might quote from the Fourth Amendment discussion in the lattermost part of the Hedgepeth opinion to bolster his argument — but he wouldn't quite be able to find the quote he'd be casting about for, something to the effect that young Miss Hedgepeth's arrest "was reasonable."

The reason he wouldn't find a particular quote like that, though, is because the Hedgepeth opinion very emphatically does not so hold. In fact, Judge Roberts expressly recognized, and clearly wrote, that under the clear holding of a very recent case from the U.S. Supreme Court, federal courts were prohibited from engaging in any analysis of the "reasonableness" of Ansche Hedgepeth's arrest:

Given the undisputed existence of probable cause, Atwater [v. City of Lago Vista, 532 U.S. 318 (2001),] precludes further inquiry into the reasonableness of Ansche’s arrest under the Fourth Amendment.

The Atwater case had challenged as unreasonable the arrest (rather than ticketing) of a Texas woman who'd violated a state seatbelt law. Not only was it controlling precedent that absolutely bound Judge Roberts and his fellows on the D.C. Circuit, but it had specifically cited the facts of Ansche Hedgepeth's arrest in footnote 23 — giving the lower federal courts, in effect, an advance advisory opinion on the outcome of any Fourth Amendment challenge she might make! Might Prof. Rubin simply disagree with Atwater? Well, sure he might — notwithstanding the fact that it was written by Justice Souter, for whom Prof. Rubin himself had clerked. But while law professors are free to second-guess the Supreme Court, Circuit Judges aren't, and Judge Roberts didn't. Thus, for Prof. Rubin to argue that Judge Roberts held in Hedgepeth that Ansche Hedgepeth's arrest was "reasonable" would not only be disingenuous, but spectacularly, breathtakingly wrongheaded — again, to the point that one must wonder whether such a misstatement could possibly have been unintentional, when coming from one with Prof. Rubin's qualifications and position.

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To me, however, the most troubling part of Prof. Rubin's comment about Hedgepeth was its race-baiting. It's somewhat obvious from the transcript, but extremely obvious from watching the actual video replay, that Prof. Rubin stopped himself mid-sentence to deliberately add young Miss Hedgepeth's race to his description of her in the set-up for his comment about Judge Roberts' opinion in the case.

Why? What does her race have to do with anything?

No mention of Miss Hedgepeth's race is made in either Judge Roberts' opinion for the unanimous D.C. Circuit panel or in the opinion written by the district court. Apparently, no argument of racial discrimination was ever advanced in either court by her very capable counsel (who otherwise demonstrated themselves fully willing to tilt at windmills on their clients' behalf). There is no doubt that her counsel well knew that a claim of racial discrimination — whether based on the statute and policies, or simply on the DC Metro's actual practices in enforcing them — could immediately catapult their case out of "rational relationship" equal protection analysis and into other legal realms where their chances of ultimate success would be vastly better. Did they simply fumble the case?

It would seem that Prof. Rubin lives and works in the Washington, D.C. area. Yet he might, hypothetically, assert that when he injected Miss Hedgepeth's race into the News Hour discussion, he was unaware of any evidence to show that white children had also been victims of the same statute and Metro's same mandatory arrest/no tolerance policy. And indeed, let us give him every benefit of the doubt. Let us assume that despite being a professor who teaches constitutional law in that same city, he entirely missed the front-page first-section article in the WaPo on November 16, 2000, that brought Miss Hedgepeth to public attention — which revealed that in the "week-long undercover crackdown on violators last month, ... a dozen plainclothes officers cited or arrested 35 people, 13 of them juveniles [and o]nly one adult was arrested." Perhaps he also missed WaPo's front-page metro-section article from the following day (boldface mine):

An article on the arrest appeared in yesterday's Washington Post and quickly became a topic of discussion.

Ansche was sought out by the ABC television show "Good Morning America," the BBC in London and a radio station in Australia. Hundreds of readers weighed in on the newspaper's Web site.

Many chastised Metro for overzealous enforcement, though some did complain that too many people were eating in the system. Others cheered Metro for the crackdown.

Some wondered whether Ansche was arrested because she is black.

Metro reported 25 arrests at the Tenleytown station this year. Of those arrested, five were white males, eight black males, eight white females and three black females. One was listed as a Hispanic female, who could be of any race.

So let's presume that as he sat there speaking to the public on the News Hour, Prof. Rubin somehow remembered Miss Hedgepeth's race, but didn't know, or had forgotten, that neither her lawyers nor the WaPo had come up with any facts to suggest that she was the victim of racial discrimination, and that the WaPo's investigation had pretty much exploded that notion.

Even under that most charitable interpretation, I submit to you, friends and neighbors, that someone in Prof. Rubin's position has a moral and ethical obligation to get some facts before he publicly plays the race card against a Supreme Court nominee. I submit to you, ladies and gentlemen, boys and girls, that a law professor at Georgetown, speaking as an "expert" to a national audience on public television, ought to be held to a higher standard of factual accuracy than a layman phoning into a talk radio show or posting on the WaPo's discussion board. I submit to you, gentle readers, that whether intentionally or not, by injecting Miss Hedgepeth's race into a discussion over a lawsuit in which race was not in any way an issue, Prof. Rubin left his viewers with the distinct, predictable, extremely ugly, and absolutely unjustifiable impression that U.S. Circuit Judge John G. Roberts, Jr. is a racist.

And that is simply disgraceful, indefensible, and repulsive.

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David Seldin, Director of Communications for NARAL Pro-Choice America, abruptly resigned almost immediately after NARAL was forced by public pressure to pull its factually misleading anti-Roberts advertising. I'm not demanding that Prof. Rubin resign. But his distortions of fact about Judge Roberts are roughly as bad as those in the NARAL ad, and he lacks even the "everyone knows we're a special interest group that might say anything" defense. I respectfully suggest that Prof. Rubin ought to make a public apology to Judge Roberts, and that he should request that the News Hour broadcast it.

And to you, patient readers, I predict that you'll continue to see these same distortions made about Judge Roberts until, and probably after, he becomes Justice Roberts. Don't be fooled, and if you care about the truth, try not to let others be fooled either.