SIVACRACY.NET

He is not so interested in proportionality. The law for him is black and white.

The big differences between O'Connor and Roberts probably have nothing to do with abortion or women's rights in general (BTW, I disagree slightly with Melissa on this: more than two thirds of Americans say abortion should remain safe a legal nationwide, so if anything a great number of the 51 percent of voters who supported Bush were voting against not only their best interests but their own beliefs). They have to do with fairness, procedure, and a realistic sense of life in America.

Sandra Day O'Connor is a real American who lived the challenging life of a pioneering professional woman, mother, and struggling, brilliant attorney before running for office as a Republican in Arizona. Roberts is a rich kid who had everything handed to him all the way up the Republican legal ladder. That's not to say he is not brilliant. He most definitely is. He might turn out to be an amazing justice. You can't always tell so early.

But as Kim Lane Scheppele explains, there was one significant issue that both Roberts and O'Connor dealt with in the past two years. They took very different approaches to it. O'Connor wrote the dissent in an important case about the police arresting people for minor infractions. Roberts cited this Supreme Court case in a case he ruled on. You decide which side better reflects real life in America:

Scheppele writes:

Ansche Hedgepeth was, at the time of her crime, 12 years old. She was waiting for a friend to buy a Metrocard at the Tenleytown/American University Metrorail station in Washington, DC when she committed the fateful act.

She opened the fast food bag she was carrying and ate one French fry – in plain view of an undercover police officer.

The police officer placed her under arrest, handcuffed her and removed her shoelaces “pursuant to established procedure,” as the opinion tells us. She was held at the local police station for three hours until her mother could come to collect her.

Her offense? She violated a city ordinance against eating in Metro stations. The police had been instructed to adopt a “zero tolerance” policy in enforcing this ordinance, and Ansche Hedgepeth was one of 14 juveniles arrested for similar infractions during zero tolerance week.

The adults who ran afoul of the policy during zero tolerance week were merely given citations on the spot and were allowed to pay their fines later, as the local ordinance permitted. Minors were not eligible for such citations, however, and so were arrested because that was the only strategy available to police to enforce the ordinance. Given that police had been told that no infraction, however minor, was to be excused, any minor caught eating in the Metro was subject to mandatory arrest.

Her mother brought suit on Ansche’s behalf against the Washington Area Metropolitan Transit Authority asserting that Ansche’s arrest violated her equal protection right under the Fifth Amendment and her right to be free from unreasonable seizures under the Fourth Amendment. Both claims failed.

To the argument that age should be considered a suspect classification that would trigger heightened scrutiny in constitutional Fifth Amendment analysis, Judge Roberts wrote for a unanimous panel that it is not. As a result, the difference between the treatment of the adults and the treatment of children in the DC ordinance was subject only to a rational relation test, which Judge Roberts found it easily passed. ...

... But Judge Roberts seems determined to draw bright lines. Even though his statement of facts in Hedgepeth begins with a lament that “No one is very happy about the events that led to this litigation,” he did not let his unhappiness divert him from what, in his view, the law required. And the law allows of no exceptions, no room for common sense to modify the strict operation of a strict rule.

... Though many of us have railed against Justice O’Connor’s fact specificity and her predilection to decide cases on the narrowest possible grounds, I suspect that we are going to very much miss her humanity. Ansche Hedgepeth may be the first visible victim of the future Justice Roberts’ strict constructionism.