Roberts concluded that the arrest and detention under a mandatory arrest policy for minors was not an "unreasonable" seizure under the Fourth Amendment to the Constitution

President Bush has made ideology a critical basis for selection of his judicial nominees, and Democrats in the Senate have responded in kind. Sen. Charles Schumer of New York, in particular, has argued in the context of lower-court nominations that the Senate need not and ought not to confirm judges who refuse to divulge their own views about the meaning of the Constitution. And already he and Sen. Dick Durbin, D-Ill., who, like Schumer, sits on the Judiciary Committee, have said that they have an obligation to find out what Judge Roberts thinks about the most important constitutional questions, including the scope of the constitutional right to privacy, which the Supreme Court has held protects a woman's right to choose abortion but which justices like Antonin Scalia and Clarence Thomas reject.

The importance of such questions in this case almost couldn't be greater. For if Roberts turns out to be what the president has promised to appoint (and what many people on both ends of the ideological spectrum seem to suspect), a conservative with substantive views in the mold of Justices Scalia and Thomas, his appointment would be a seismic event in American law and the life of our country. Replacing O'Connor with that kind of extreme conservative would likely mean, among other things,

Last year, in Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts wrote an opinion upholding the arrest of a 12-year-old girl for eating a single French fry in a Washington, D.C., Metrorail station while on her way home from junior high school. As the court described, the "girl 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." Except for the time she was being fingerprinted, the girl remained handcuffed with her hands behind her back until she was released.

Roberts concluded that the arrest and detention under a mandatory arrest policy for minors was not an "unreasonable" seizure under the Fourth Amendment to the Constitution, even though adults found to have violated the same no-eating-in-the-Metro ordinance were simply given citations. For obvious reasons, this decision is likely to be a point of some contention in Roberts' confirmation hearing. But of more significance than the decision itself is a part of its reasoning.

Roberts wrote that the Metro's mandatory arrest policy was not unconstitutional in part because it would not have been "regarded as an unlawful search or seizure under the common law when the Amendment was framed," that is, under the law as it stood in 1791. He described this inquiry as "the usual first step" in assessing Fourth Amendment cases, but really it is not. Instead, it is part of an approach to the law put forward by Justice Scalia, one that has been used inconsistently at best by the Supreme Court, garnering a clear majority's support in only one Fourth Amendment decision. It is an approach that would in essence freeze our rights as they were in 1791. And it is contrary to a great deal of modern Supreme Court case law that is dear to most Americans -- from protection against wiretapping to protection of the right to choose.