Tuesday, September 13, 2005

25 or 6 to 4.
is the refrain to a song by Chicago Transit Authority, aka Chicago, one of those famous but sad bands that once played at my high school. Will Baude, himself an authority on Chicago Transit, writes about new anti-food rules for the loopers, which naturally Segways into a mention of the French Fry case. Baude calls the case meritless. I can't agree. Roberts is bright and persuasive, and there was no dissent to highlight the other side of the coin, but I found the case as troubling as anything I know about Roberts. What will the Roberts court do with the concept of equal protection under the laws? In the French Fry case (is it French fry, french fry?) Roberts said that a person who is arrested may be detained, and there is no right under equal protection not to be detained just because one is 12. But that gets the analysis backwards. There is a fundamental right to personal autonomy and freedom from restraint. If she had been 24 instead of 12, she would have been given a ticket. Historically, minority has the subject of oppressive laws and second class citizenship. (The rule did not specifically say arrest Black kids. But who else rides the DC subway? I'm guessing white tourist kids are less likely to be arrested for eating a freedom fry.) Where there is a fundamental right at stake, equal protection demands strict scrutiny. The "arrest the kids" rule was arbitrary and capricious, lacking rational basis, where adults so situated were not arrested. Maybe Roberts was right under precedent, maybe he wasn't. But the case certainly wasn't meritless. Once he can make the precedents, rather than just abide by them, will "equal protection" become part of the constitution in exile?

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