# What's Wrong/Right With Judge Roberts? **URL:** \ **Category:** Great Debates\ **Created:** [July 20, 2005, 5:47pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322 "2005-07-20T17:47:50Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![boret](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@boret](https://boards.straightdope.com/u/boret)\ **Post date:** [July 22, 2005, 9:44pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/101 "2005-07-22T21:44:59Z")
> [@John Mace](#): > > Why do you hate “Progress”? 🙂 Couldn’t help yourself, eh? 🙂 But don’t you love the titles chosen for some of these groups? You know, when I first heard “Feminists for Life” I thought: Wow, that’s unusual for someone like Roberts to be married to such a _committed_ Feminist (thinking that “for life” was a function of time and comittment). Then my _other_ brain cell kicked in. Never mind… :smack: > [@](#): > > I just can’t see how this guy won’t get confirmed by the Senate. Unless he dropped acid while he was captain of his high school football team, the guy’s gonna be out next SC justice… I agree. And “Progress for America” aside, this guy has been “pre-sold” to the religious right for over a year now, according to a NYT article. This creeps me out, but I understand that it is just business as usual in political circles. Still, I am hoping the Senate questions will not be completely inane and useless, and the replies will not be weaselly and useless (I know - I’m so naive). For anyone still interested, here is a Salon article by Georgetown U constitutional law prof Peter Rubin that questions his judgement regarding _Hedgepeth v. Washington Metropolitan Area Transit Authority_: [http://www.salon.com/news/feature/2005/07/20/roberts/](http://www.salon.com/news/feature/2005/07/20/roberts/) > [@](#): > > Roberts wrote that the Metro’s mandatory arrest policy was not unconstitutional in part because it would not have been “regarded as an unlawful search or seizure under the common law when the Amendment was framed,” that is, under the law as it stood in 1791. > > He described this inquiry as “the usual first step” in assessing Fourth Amendment cases, but really it is not. > > Instead, it is part of an approach to the law put forward by Justice Scalia, one that has been used inconsistently at best by the Supreme Court, garnering a clear majority’s support in only one Fourth Amendment decision. It is an approach that would in essence freeze our rights as they were in 1791. And it is contrary to a great deal of modern Supreme Court case law that is dear to most Americans – from protection against wiretapping to protection of the right to choose. > > Why Roberts chose this approach and whether he indeed supports this narrow type of history-based constitutional interpretation of course remains to be seen. But what his approach is to interpreting the Constitution may well turn out to be the critical question in his confirmation hearings – not whether he is adequately accomplished. Am I resorting to partisan hackery by being troubled by this? Is Prof Rubin being partisan or specious in his critique? I don’t know enough to say, and it troubles me that I won’t know enough before Roberts is officially confirmed. Yes, I know: Boo hoo, and too bad for me. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 22, 2005, 10:05pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/102 "2005-07-22T22:05:57Z")
Here’e the findlaw document of [Hedgepeth v. Washington Metropolitan Area Transit Authority](http://news.findlaw.com/wp/docs/crights/dcfrycase93003opn.pdf#search='Hedgepeth%20v.%20Washington%20Metropolitan%20Area%20Transit%20Authority') (warning: PDF). I skimmed, and it doesn’t seem to stand up to the Salon article. Firstly, Roberts didn’t write the opinion, Emmet Sullivan did. Secondly, they cite the SCOTUS ruling in Atwater vs Lago Vista (the woman arrested for not wearing a seat belt) as precedent. Thirdly, they are assuming that Scalia’s approach to judical review is invalid. Even if that were used in this case (and it doesn’t look like it was), are we really to assume that Scalia should not be on the SCOTUS? Anyway, read it and see what you think. Maybe I missed something-- as I said, I just skimmed it quickly. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [July 22, 2005, 11:01pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/103 "2005-07-22T23:01:02Z")
> [@John Mace](#): > > Even if that were used in this case (and it doesn’t look like it was), are we really to assume that Scalia should not be on the SCOTUS? I’d go along with that assumption. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 22, 2005, 11:09pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/104 "2005-07-22T23:09:51Z")
> [@Homebrew](#): > > I’d go along with that assumption. On what basis would you exclude him? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 22, 2005, 11:10pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/105 "2005-07-22T23:10:13Z")
Out in Blogovania, there is something going around about whether or not Roberts is a member of the Federalist Society. Apparently, he was identified as such but the word is that he denies it? Thoughts? Scurrillous gossip? Bald faced and actionable libels? ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 23, 2005, 12:02am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/106 "2005-07-23T00:02:59Z")
> [@John Mace](#): > > On what basis would you exclude him? General principles. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 23, 2005, 12:26am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/107 "2005-07-23T00:26:54Z")
Do you mean a strict reading of the original text of general principles, or some imagined “penumbra” dreamed up by an activist judge? ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 23, 2005, 12:28am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/108 "2005-07-23T00:28:41Z")
> [@elucidator](#): > > Do you mean a strict reading of the original text of general principles, or some imagined “penumbra” dreamed up by an activist judge? We’re going by my dad’s general principles here. Most definitely a strict reading. ---
**Author:** ![boret](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@boret](https://boards.straightdope.com/u/boret)\ **Post date:** [July 23, 2005, 1:10am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/109 "2005-07-23T01:10:12Z")
> [@John Mace](#): > > Here’e the findlaw document of [Hedgepeth v. Washington Metropolitan Area Transit Authority](http://news.findlaw.com/wp/docs/crights/dcfrycase93003opn.pdf#search='Hedgepeth%20v.%20Washington%20Metropolitan%20Area%20Transit%20Authority') (warning: PDF). I skimmed, and it doesn’t seem to stand up to the Salon article. Firstly, Roberts didn’t write the opinion, Emmet Sullivan did. Secondly, they cite the SCOTUS ruling in Atwater vs Lago Vista (the woman arrested for not wearing a seat belt) as precedent. Thirdly, they are assuming that Scalia’s approach to judical review is invalid. Even if that were used in this case (and it doesn’t look like it was), are we really to assume that Scalia should not be on the SCOTUS? > > Anyway, read it and see what you think. Maybe I missed something-- as I said, I just skimmed it quickly. I have no idea if you missed something in the pdf you cited but maybe you missed _my_ point? I’m no lawyer, and was asking you (and other dopers, of course) if Rubin’s critique was specious or not. Roberts wrote what he wrote, as Rubin cites (what Emmet Sullivan wrote is irrelevant to my question). In your opinion (obviously), is what Roberts wrote a particularly narrow or troubling view of judicial temperament or not? And if not (which you seem to be saying, but I can’t be sure by your reply), then _why_ not? Is it okay in your mind to interpret the constitution according to 1791 standards? Was Roberts mischaracterized by Rubin or not? As I say, I am no lawyer, and maybe this opens up a whole can of worms that has been dealt with here by the regular legal beagles, but would someone please put it into “moron-speak” for a guest? Is that an acceptable standard of constitutional interpretation? Is it a hint of what we should look forward to if this nomination goes through? Is it a sign of a “Scalia-esque” protege? Does it tell us anything about Roberts, or is he still an unknown quantity? (in spite of his being heavily pre-sold to the religious right for various reasons) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 23, 2005, 1:21am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/110 "2005-07-23T01:21:20Z")
> [@elucidator](#): > > Out in Blogovania, there is something going around about whether or not Roberts is a member of the Federalist Society. Apparently, he was identified as such but the word is that he denies it? > > Thoughts? Scurrillous gossip? Bald faced and actionable libels? I’ve read that he is a member, but the question is whether or not he’s an active member-- ie, dues paying or meetin’ goin’ type. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 23, 2005, 1:26am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/111 "2005-07-23T01:26:38Z")
So there may not be any actual animal sacrifices or pentagrams involved? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 23, 2005, 1:38am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/112 "2005-07-23T01:38:32Z")
> [@boret](#): > > Is it okay in your mind to interpret the constitution according to 1791 standards? Was Roberts mischaracterized by Rubin or not? > > As I say, I am no lawyer, and maybe this opens up a whole can of worms that has been dealt with here by the regular legal beagles, but would someone please put it into “moron-speak” for a guest? > > Is that an acceptable standard of constitutional interpretation? Is it a hint of what we should look forward to if this nomination goes through? Is it a sign of a “Scalia-esque” protege? Does it tell us anything about Roberts, or is he still an unknown quantity? (in spite of his being heavily pre-sold to the religious right for various reasons) Salon requires registration, so I can’t read the whole article, but if you can link us to the original writings of Roberts on this case, then we can go from there. I don’t trust an editorial that doesn’t link to original sources. Further, I’m suspicious of your quote, though, because of this (emphasis added): > [@](#): > > Roberts wrote that the Metro’s mandatory arrest policy was not unconstitutional in part because it would not have been “regarded as an unlawful search or seizure under the common law when the Amendment was framed,” that is, under the law as it stood in 1791. Which begs the question: what are the other parts? “Conveniently” left out because they don’t fit the conclusion the writer wants you to draw? But so what if he’s a Scalia-type protege. Are you saying that Scalia’s philosophy of constitutional interpreation is invalid? If so, why? What schools of thought are valid, and how do you determine that? ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [July 23, 2005, 1:48am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/113 "2005-07-23T01:48:21Z")
> [@John Mace](#): > > I’ve read that he is a member, but the question is whether or not he’s an active member-- ie, dues paying or meetin’ goin’ type. [http://www.washingtonpost.com/wp-dyn/content/article/2005/07/20/AR2005072002431.html](http://www.washingtonpost.com/wp-dyn/content/article/2005/07/20/AR2005072002431.html) > [@](#): > > Federalist Affiliation Misstated > Roberts Does Not Belong to Group > > By Charles Lane > Washington Post Staff Writer > Thursday, July 21, 2005; Page A16 > > Everyone knows that, like all good Republican lawyers, John G. Roberts Jr. is a member of the Federalist Society, the conservative law and public policy organization where right-of-center types meet to denounce liberalism and angle for jobs in the Bush administration. > > And practically everyone – CNN, the Los Angeles Times, Legal Times and, just yesterday, The Washington Post – has reported Roberts’s membership as a fact. One liberal group opposed to Roberts’s nomination, the Alliance for Justice, has noted it on its Web site. > > But they are wrong. John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been. > > “He has no recollection of ever being a member,” said Dana Perino, a White House spokeswoman who contacted reporters to correct the mistake yesterday. > > She said that Roberts recalls speaking at Federalist Society forums (as have lawyers and legal scholars of various political stripes). But he has apparently never paid the $50 annual fee that would make him a full-fledged member. His disclosure forms submitted in connection with his 2003 nomination to the D.C. Circuit make no mention of it. > > How this urban legend got started is not clear. The issue probably got clouded in part because the Federalist Society’s membership is confidential; individual members must decide whether or not to acknowledge their affiliation. > > Even some conservatives found the story plausible. > > “I’m shocked that he is not,” said Richard A. Samp, chief counsel of the right-of-center Washington Legal Foundation. Overall I am disappointed with Bush’s choice, but not much, especially after this revelation. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 23, 2005, 1:50am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/114 "2005-07-23T01:50:20Z")
> [@elucidator](#): > > So there may not be any actual animal sacrifices or pentagrams involved? Who’s your favorite guy on the [Board of Visitors](http://www.fed-soc.org/boardofvisitors.htm)? ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [July 23, 2005, 2:01am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/115 "2005-07-23T02:01:53Z")
> [@John Mace](#): > > Who’s your favorite guy on the [Board of Visitors](http://www.fed-soc.org/boardofvisitors.htm)? Oh my Og! Mr “Saturday night massacre” and Mr “spilling the beans on the way we were tracking Osama” as co-chairmen… How Rovian! ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 23, 2005, 2:18am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/116 "2005-07-23T02:18:12Z")
> [@John Mace](#): > > Who’s your favorite guy on the [Board of Visitors](http://www.fed-soc.org/boardofvisitors.htm)? Which ones are dead? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 23, 2005, 2:21am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/117 "2005-07-23T02:21:42Z")
And I hates Meeses to pieces. ---
**Author:** ![boret](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@boret](https://boards.straightdope.com/u/boret)\ **Post date:** [July 23, 2005, 3:54am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/118 "2005-07-23T03:54:50Z")
> [@John Mace](#): > > Salon requires registration, so I can’t read the whole article, but if you can link us to the original writings of Roberts on this case, then we can go from there. I don’t trust an editorial that doesn’t link to original sources. Further, I’m suspicious of your quote, though, because of this (emphasis added): > > Which begs the question: what are the other parts? “Conveniently” left out because they don’t fit the conclusion the writer wants you to draw? I don’t blame you one bit for thinking that way, because it is my own thinking. I can’t easily access pdf files because of my shit-ass computer (your own cite crashed me twice). As far as I can determine, here is a cite for the full text of Roberts’ opinion: [http://pacer.cadc.uscourts.gov/docs/common/opinions/200410/03-7149a.pdf](http://pacer.cadc.uscourts.gov/docs/common/opinions/200410/03-7149a.pdf) If you find anything in there that debunks Prof Rubin, or sheds further light on the opinion, then I would really appreciate your input. I can’t determine this for myself under the circumstances, and that is one of the reasons I chose this messageboard to ask questions about this - I expect that both sides will weigh in on any particular point in question (For the record, I do lean left in many ways, but I try not to be a “knee-jerk” lefty, and would like to hear every possibility before forming an opinion). > [@](#): > > But so what if he’s a Scalia-type protege. Are you saying that Scalia’s philosophy of constitutional interpreation is invalid? If so, why? What schools of thought are valid, and how do you determine that? Hey, I don’t know! I don’t know if Scalia’s opinions are “invalid”, but I do know he is a hot spot name for the left, and furthermore, I actually met the man. My personal opinion leaves me with a bad taste for him - Brilliant almost certainly, but disdainful and lacking in humanity when it comes to interacting with “regular” people. I understand this is only an anecdote, and perhaps there are many others who will step forward to say, “Oh no, he is a heck of a guy, and you must have caught him at a bad time!”, but that is the basis of what I know about him - my own experience. Sort of like the prototype of what right-winger’s like to portray as the “typical” “disdainful” liberal, when it comes to dealing with “regular” people. _That_ is Scalia. Perhaps he doesn’t suffer “fools” easily, but for some reason I expect more from a justice on the SCOTUS. Politicians in general I don’t expect much from, but is it really so unreasonable to expect a SCOTUS justice to be both brilliant _and_ a decent human being? Are there no potential candidates that fit the bill in both categories? I don’t know… For the record, I don’t think Roberts is necessarily the same sort of grade A prick Scalia proved himself to be to me. The point is - I don’t know enough about him. So far, I’d say, no, he’s not a prick - but really - how should I know that? I’d like some honest info, one way or another. None of this “their guy” or “our guy” stuff, because I don’t _have_ “a guy”. Call me careless, but I really didn’t plan on having to choose on that basis. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [July 23, 2005, 4:07am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/119 "2005-07-23T04:07:11Z")
> [@GIGObuster](#): > > [http://www.washingtonpost.com/wp-dyn/content/article/2005/07/20/AR2005072002431.html](http://www.washingtonpost.com/wp-dyn/content/article/2005/07/20/AR2005072002431.html) > > Overall I am disappointed with Bush’s choice, but not much, especially after this revelation. Reading between the lines on that story, I’m not really convinced. Call me paranoid, but if a guy says he “can’t recall” being a member of something, that’s an awfully fishy qualification. Is he saying it’s possible he was a member and has forgotten? Why not just say “Nope, I’ve never been a member?” “I don’t recall” is a textbook weasel-phrase. In addition to that, it sounds like he has attended meetings and spoken to the club, the denial of official membership seems to rest on the assertion that he has never paid dues. Once again, maybe it’s just residual paranoia from my “experimental” days but it doesn’t seem outside the realm of a possibility that something akin top a comped membership might not be available for someone who’d rather not have his name on any paperwork. The “I can’t recall” precaution may have been taken just in case his name turns up on some unofficial membership list that he forgot about. I’m sure I’m probably being ridiculous, and Roberts is not, in fact, a Death Eater but I don’t think it would hurt anything during the hearings if the Dems were to ask him to roll up his sleeve and check for a mark. ---
**Author:** ![boret](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@boret](https://boards.straightdope.com/u/boret)\ **Post date:** [July 23, 2005, 4:26am UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/120 "2005-07-23T04:26:18Z")
See, that’s what I mean - I’m hoping for no “weasel” answers to questions. How the heck did we come to a place where that sentiment is considered “partisan”? What is wrong with wanting to know about these things? This guy is going to be on the SCOTUS for the next 20 years at least. Shouldn’t we care about how he thinks, and what he stands for? [Previous page](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322.md?page=5) [Next page](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322.md?page=7)