Resembling Justice O’Connor?

Wade Henderson, the executive director of the Lawyers Committee for Civil Rights Under Law, points to John Roberts’s criticism of the FCC’s endorsement of racial preferences, upheld in Metro Broadcasting v. FCC, as a reason to oppose his nomination to the Supreme Court.

Critics of Roberts often lament that he doesn’t resemble Justice O’Connor. Those critics should take a look at how O’Connor began her eloquent dissent in Metro Broadcasting:

At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens “as individuals, not `as simply components of a racial, religious, sexual or national class.'” [citation omitted]. Social scientists may debate how peoples’ thoughts and behavior reflect their background, but the Constitution provides that the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think. To uphold the challenged programs, the Court departs from these fundamental principles and from our traditional requirement that racial classifications are permissible only if necessary and narrowly tailored to achieve a compelling interest. This departure marks a renewed toleration of racial classifications and a repudiation of our recent affirmation that the Constitution’s equal protection guarantees extend equally to all citizens. The Court’s application of a lessened equal protection standard to congressional actions finds no support in our cases or in the Constitution. I respectfully dissent.

Let’s join the critics, for once, and hope that Justice Roberts will resemble Justice O’Connor — the Justice O’Connor of Metro Broadcasting, not the Justice O’Connor of Grutter.

Say What? (3)

  1. actus August 29, 2005 at 3:39 pm | | Reply

    Better would be a justice o’connor of Atwater. She dissented on that 4th amendment case. Roberts extended that majority opinion in his holding that a discretionless arrest for the possession of a french fry was reasonable.

  2. Dom August 30, 2005 at 1:45 pm | | Reply

    Roberts wrote about this “french fry” case: “No one is very happy about the events that led to this litigation,” so he hardly thought it was reasonable. Also: “The district court had and we too may have thoughts on the wisdom of this policy choice . . . but it is not our place to second-guess such legislative judgments.” Just what I want from a judge

    The only questions put to him were: Does it violate the 5th amendment? Does it violate the 4th amendment? He said no to both questions. I think most would agree it does not violate the 5th, and the 4th is more troubling.

    In any case, the subway station had been complaining for years about vandelism, and the child’s arrest was a result of the zero-tolerance policy, which was meant to make parents responsible for their children’s behavior. It had that effect.

  3. actus August 30, 2005 at 1:57 pm | | Reply

    “No one is very happy about the events that led to this litigation,” so he hardly thought it was reasonable.

    If its not reasonable, the 4th amendment prohibits it.

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