"It is not our place"

John Podhoretz makes a point that deserves greater attention:

He is really better known as a lawyer and not as a legal intellectual, because he has litigated cases rather than written extensively on the theoretical underpinnings of American jurisprudence. And that may have been the fact that tipped the scales in Roberts' favor.

Intellectuals, especially legal intellectuals, tend to be a bit prickly, in part because there's so much sophistry in legal argumentation that sarcasm and disbelief often become the stock in trade when thinkers have at it. The greatest example of this in our time, of course, is Justice Nino Scalia, whose outraged opinions are almost like Mort Sahl monologues.

And David Brooks is rhapsodic in his praise of the choice.

The tendency of justices appointed by Republicans to go down the slippery slope on the left was the subject of a segment Neal Cavuto's program with Mark Levin. Levin said it's the corrupting influence of absolute power.* That may be true, but I think Podhoretz's point is more important. A justice of the Supreme Court must have a clear understanding of what the proper role of the judiciary is in our system. If he/she doesn't, it will be easier for sympathy to overcome the demands of sound jurisprudence.

Meanwhile, the battle is underway. Roberts' wife is--gasp!--active in pro-life anti-choice groups. There's also his Catholicism, as odd as that seems. Straight from the handbook of the Politics of Personal Destruction, which Democrats decry when they're on the wrong end of it, but otherwise practice with elan.

But I expect the most smoke to be generated by the French-fry Case, in which Roberts wrote an opinion refusing to infer a fundamental right to be free from restraint or to find a denial of equal protection based on one's age. This opinion has the potential to upset people to understand it, because its result was that the arrest of a 12 year old girl by the Washington D. C. Metro police was upheld. It deals with arcane legal and constitutional concepts that take a lot of explaining. Hugh Hewitt has a very good brief of that opinion. Read it. Here's the first paragraph, which is a masterpiece of clarity and simplicity:

No one is very happy about the
events that led to this litigation. A twelve-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 Fourth and Fifth Amendments to
the Constitution. Like the district court, we conclude that
they did not, and accordingly we affirm.

Larry Tribe would have ruled, no doubt, that the subway cops couldn't do that, and prescribed a change in the law to provide another option for the cops. Ted Kennedy would have bloviated until everybody else had gone to sleep or left the room and then ruled the same. While the liberal media will trumpet it as evidence that Justice Roberts approves of detaining and shackling 12-year-olds for such a minor offense as eating a french fry on the subway, they're wrong. He explicitly does not agree with of stupid laws the one that brought about the case. The real import of the case is this: " it is not our [i.e. the Courts'] place to second-guess such legislative judgments."

As Hugh notes:

This is superb opinion writing, for in an opening paragraph the judge fully and quickly explains the facts, the law, the result, and the court's dim view of the law involved, all without overstepping a court's appropriate role.

Anybody who reads the facts is repelled by what happened, but the real shame of the case lies with those who enacted the zero-tolerance policy for the subways and instructed officers to take persons into custody without regard to the nature of the violation. In fact, what Roberts' opinion stands for is that legislatures may not always be right, but they are still the legislatures whose authority is to make laws and therefore shouldn't be overruled lightly by the courts. It may be difficult for laymen to understand, but this decision is exactly correctly decided. When I started law school, we had a one-week introductory class taught by Rex E. Lee, the first dean of the BYU Law School, which focused on what he called "thinking like a lawyer." The point of the thing was that lawyers have to analyze facts and apply principles established by law, and not rush to a result they like. When the courts try to micromanage policy, they create all sorts of unintended consequences which can only be undone by more litigation. Hence the maxim, "Hard cases make bad law." Only justices who get that should be given this authority, and this case demonstrates with lapidary clarity that Roberts gets it.

The expansion of vague terms like "freedom of speech," along with the creative "discovery" of "penumbral rights" in the Constitution, like the right to privacy, has been used to defeat checks and balances and threaten democracy itself in this country. If democracy means anything, it means that the people, through the political process, decide what the rules of society should be, because the people should be allowed to decide what kind of society, within limits, they live in. That doesn't mean that society will always be totally fair to every minority. We still put pedophiles in prison. While the concept of "victimless" crime has become popular, it is not really valid. Lawyers and judges who don't get that it is not their job to engineer a society where nobody is offended, stigmatized, chilled, on a slippery slope or partakes of the fruit of the poisonous tree, etc. should not be on the bench.

This is the kernal of the whole problem with the judiciary in the past 50 years. After striking down segregation, which was proper, the federal courts seemed to acquire a taste for using the Constitution as an excuse to fine tune the policy enactments of both the federal and state governments. They have rushed in where angels fear to tread, trampling the distinction between the judicial function and the policy-making function. I don't know what the average federal judge thinks of the open warfare in the Senate that breaks out every time a new nominee is presented unless he/she is as dull as dishwater, but it is certainly distasteful to me as a lawyer. What's worse is that the reason for this disgusting spectacle is that the left is protecting the political gains it has made through all-but-untrumpable court decisions, and will stop at nothing to prevent the one thing that endangers them, justices who understand that sentence of John Roberts', " it is not our place to second-guess such legislative judgments."