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

Slate 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.

Dahlia

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.

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\^*/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.