Sunday, July 31, 2005
The french fry case:
At Heidi Bond's, Paul Gowder is in debate with Will Baude.
This comment of mine wouldn't post:
I think Paul has the better of this one.
Precedent exists on both sides. A skilled judge should have no trouble writing this opinion either way - it's an open question. It is a case of first impression, not another Atwater.
It's a due process case under the 5th.
The invocation of equal protection of fundamental rights requiring phrasing the question the right way, which plaintiffs did not.
Do minors have a liberty interest of freedom from arbitrary and capricious arrest by the federal government?
is closer to a way to frame the issue.
feel free to throw in "while traveling to the nation's capital."
Cleburne, Lawrence, Romer, Anderson, provide a basis for "rational basis with teeth" Locknerism.
It is a mistake to point to deferential "rational basis" review when fundamental rights, including personal autonomy and travel to the seat of government are at risk.
I do not see that Robert's decision here is compelled by the precedents. Rather, it may express his personal preferences, which would be troubling, or may indicate a lack of creativity, which would be troubling.
I am not sure of my conclusions.
I also don't know how Roberts will write once on the court as an equal. But he will probably give at least some weight to stare decisis, so it is important what he currently thinks the case law says.
At Heidi Bond's, Paul Gowder is in debate with Will Baude.
This comment of mine wouldn't post:
I think Paul has the better of this one.
Precedent exists on both sides. A skilled judge should have no trouble writing this opinion either way - it's an open question. It is a case of first impression, not another Atwater.
It's a due process case under the 5th.
The invocation of equal protection of fundamental rights requiring phrasing the question the right way, which plaintiffs did not.
Do minors have a liberty interest of freedom from arbitrary and capricious arrest by the federal government?
is closer to a way to frame the issue.
feel free to throw in "while traveling to the nation's capital."
Cleburne, Lawrence, Romer, Anderson, provide a basis for "rational basis with teeth" Locknerism.
It is a mistake to point to deferential "rational basis" review when fundamental rights, including personal autonomy and travel to the seat of government are at risk.
I do not see that Robert's decision here is compelled by the precedents. Rather, it may express his personal preferences, which would be troubling, or may indicate a lack of creativity, which would be troubling.
I am not sure of my conclusions.
I also don't know how Roberts will write once on the court as an equal. But he will probably give at least some weight to stare decisis, so it is important what he currently thinks the case law says.
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