John Whitehead's Commentary

"The very rich are different from you and me." -- F. Scott Fitzgerald.

There's been much discussion in the media lately over the political leanings of U.S. Supreme Court nominee John G. Roberts. Yet as one Washington Post reporter put it, "You can follow the next two months of political thrashing and hullabaloo over the nomination of John Roberts to the Supreme Court, or you can get the whole thing over with by looking at how he handled a single french fry."

Ansche Hedgepeth had no idea what the consequences would be when she stopped one day to buy some french fries on her way home from school. On October 23, 2000, 12-year-old Ansche and a friend arrived at a Washington, D.C. metro station to catch the train home. After proceeding to the lower level, Ansche placed one of the french fries in her mouth. Immediately, a police officer demanded that she put down her fries and remove her backpack. Although Ansche never resisted or failed to cooperate with the officer, she was told to place her hands behind her back and she was handcuffed. She was then informed that it was against the law to eat in a subway station. After a policeman removed Ansche's shoestrings and searched her jacket and backpack, a female officer frisked her. Ansche was then led to a police car and taken to the police station, where she was interrogated, booked, fingerprinted and finally released into her mother's custody after being detained for several hours. Believing that Ansche's constitutional rights had been violated, Ansche's mother turned to The Rutherford Institute for help in filing a lawsuit against the metro police.

In handing down a ruling for the U.S. Court of Appeals, Judge Roberts stated that "[n]o one is very happy about the events that led to this litigation." He goes on to account how Ansche "was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later--all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal."

Despite his ability to recognize the harshness of her treatment, Roberts ruled that Ansche's constitutional rights had not been violated in any way. So how do you get a decision like the one handed down by Roberts? By taking compassion out of the equation and meting out the judgments of the law in a vacuum, that's how. Roberts is exactly what one would expect George W. Bush to choose-- deferential to authority, whether government or business, and certainly not a civil libertarian. Although he appears to be a thinking judge who sees Ansche's pain, he's like the father who says before spanking his child, "This hurts me more than it hurts you." He just doesn't see that the letter of the law only works when it applies to human beings.

But in the end, the law means nothing if it isn't applied to human beings compassionately. The reason judges sit on courts is to do justice. Yet unless you've experienced life outside the rarefied circles in which most of our judiciary operate, it would be hard to see the humanity behind the facts of a case, let alone identify with the terror and uncertainty that most people feel when thrown into a situation like Ansche's.

Roberts is not alone in being removed from the "common man." Consider, for example, the men and women who currently serve on the U.S. Supreme Court. They are all people of affluence, and most of them come from privileged backgrounds. In a small judicial body of nine, it is interesting to note the striking similarities in education, affluence and wealth among the majority of the justices that interpret the laws of our diverse nation. Indeed, all are wealthy and some are millionaires many times over. And if John Roberts--who received both his undergraduate and law degrees from Harvard--is confirmed by the Senate, he will be the sixth sitting judge to attend Harvard Law School and the third to attend Harvard College.

What does all this tell us? Certainly not that there is anything inherently wrong with wealth. But it does say something important about the privileged and affluent.

As F. Scott Fitzgerald recognized in his study of the rich, they are different. The rich and affluent, to put it simply, have a difficult time identifying with those of us who are members of the lower classes.

The courts are supposed to promote democracy. Yet as one can see from the makeup of the Supreme Court, it's a ruling aristocracy. Is it really possible to promote democracy if you come from such an elitist circle and you're so out of touch with the people?

The easy answer is to even the playing field a little. Putting it into practice, however, may be a little difficult--but not impossible. And by all means, avoid stocking the Court with millionaires.

Certainly, the president should make broader-based selections to the court, rather than selecting them from elite universities. With most of the justices hailing from Ivy League schools, it's like a gathering of alumni. Yet surely there are equally intelligent candidates out there who happened to attend schools like the fine state universities sprinkled across the country.

If our courts, especially the Supreme Court, do not reflect the people, we will continue to see the kinds of atrocious decisions that have been handed down recently. John Robert's ruling in the french fry case is only understandable in the context of someone who has never wanted for anything or has always been in a position of power and privilege. If you're not able to understand what it's like to be one of the "little guys," afraid to lose your home because some local government wants to commandeer it and sell it to a larger developer for profit, it would be relatively easy to rule, as the Supreme Court recently did in Kelo v. New London, that the government is within its right to do so.

Everywhere we look today, it seems that the government is invading every aspect of our lives. And because of it, our very rights as American citizens are at stake. We need courts that not only say they feel our pain, but also apply the law so we are protected. But if those who make up our highest court can in no way identify with us, then there is little that stands between us and the growing authoritarian state.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.