Preserve the Balance
Team Supreme Blog
You Want Some Fries With That?
Someone once said that today's conservatives want government to be small enough to fit into our bedrooms. As I learn more about John Roberts's legal philosophy, I'm starting to understand this idea.
During his time on the DC Circuit, he's taken two opposite views of the proper size of government — and in both cases, basic rights and protections were on the losing end of his calculation.
In Rancho Viejo v. Norton, Roberts wrote a dissenting opinion arguing that Congress's power to enact environmental protection legislation was quite limited. It would seem that when government regulation conflicts with a business interest, "limited government" is preferable, and judges may decide what a legislature may or may not do. We've seen this kind of legal thinking coming straight from the mouths and pens of Justices Scalia, Thomas, and Rehnquist for years. If this were to become the majority view, hate crimes laws, anti-discrimination laws, and other important protections would be at risk.
Roberts takes quite a different view when the dispute is between the government and an individual civil rights plaintiff — in those cases, the government gets more slack. In Washington, DC a 12-year-old girl was caught eating one French fry in the Metro system. She was arrested, her shoelaces were removed, and she was taken to a police station where she was detained for three hours, all the while terrified and in tears. Under DC law, an adult who broke the same rule would simply have been given a citation. The girl filed a civil rights lawsuit, claiming that she had been treated unfairly because of her age and that her rights had been violated. In her case, Roberts concluded that government could be a lot bigger: it can drag a citizen - a child, in fact - to the police station for eating a French fry. And in this case, Roberts noted that it is simply not a judge's job to second-guess the government.
So it would appear that government is too small to protect our environment, but big enough to arrest our children. And Judges may be bold in second-guessing Congress, but show deference to the DC police.
For the GLBT community, this is no laughing matter. Only two years ago, the Supreme Court ruled in Lawrence v. Texas that government is not welcome in our bedrooms. How would Roberts have voted in Lawrence, given his ruling in the "French fry" case?
I don't claim to have the answers — but I do know this: reading these two cases, my concerns are super-sized.
During his time on the DC Circuit, he's taken two opposite views of the proper size of government — and in both cases, basic rights and protections were on the losing end of his calculation.
In Rancho Viejo v. Norton, Roberts wrote a dissenting opinion arguing that Congress's power to enact environmental protection legislation was quite limited. It would seem that when government regulation conflicts with a business interest, "limited government" is preferable, and judges may decide what a legislature may or may not do. We've seen this kind of legal thinking coming straight from the mouths and pens of Justices Scalia, Thomas, and Rehnquist for years. If this were to become the majority view, hate crimes laws, anti-discrimination laws, and other important protections would be at risk. Roberts takes quite a different view when the dispute is between the government and an individual civil rights plaintiff — in those cases, the government gets more slack. In Washington, DC a 12-year-old girl was caught eating one French fry in the Metro system. She was arrested, her shoelaces were removed, and she was taken to a police station where she was detained for three hours, all the while terrified and in tears. Under DC law, an adult who broke the same rule would simply have been given a citation. The girl filed a civil rights lawsuit, claiming that she had been treated unfairly because of her age and that her rights had been violated. In her case, Roberts concluded that government could be a lot bigger: it can drag a citizen - a child, in fact - to the police station for eating a French fry. And in this case, Roberts noted that it is simply not a judge's job to second-guess the government.
So it would appear that government is too small to protect our environment, but big enough to arrest our children. And Judges may be bold in second-guessing Congress, but show deference to the DC police.
For the GLBT community, this is no laughing matter. Only two years ago, the Supreme Court ruled in Lawrence v. Texas that government is not welcome in our bedrooms. How would Roberts have voted in Lawrence, given his ruling in the "French fry" case?
I don't claim to have the answers — but I do know this: reading these two cases, my concerns are super-sized.
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