Very funny stuff happening over at the Volokh Conspiracy.  Orin Kerr dissects an article, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, which was the case where the video tape in Scott v. Harris was, according to the majority, dispositive.  The video is here.

Orin characterized the point of the article (which was written in part by Dave Hoffman of Concurring Opinions) as follows:

The idea behind the article is great. The goal was to test who really shared Justice Scalia’s views about what a reasonable juror would conclude after watching the video in the case. Their conclusion in a nutshell: Justice Scalia was privileging a conservative white male view of the case, substituting a reasonable juror of the Justices’ background for a reasonable juror more broadly.

Even in the Scott decision, Justice Stevens, in his dissent, saw the videotape differently:

In footnote 1, Justice Stevens speculates about why he has such a different view of the videotape than the Justices in the majority. Stevens speculates that the Justices in the majority may have overestimated the risk of the chase because they learned to drive when most high-speed driving took place on superhighways:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on super-highways — when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine — they might well have reacted to the videotape more dispassionately.

While Orin spends his time debunking the “methodology” of the article, the bottom line (as “proven” by the outcome of the case) is that we now know who that objectively reasonable person is:  Antonin Scalia.

One of the oldest lawyer jokes is about no one having ever met the “reasonable man” who provides the standard for almost every test a court ever created.  While many will agree with the position taken by a court as to what is objectively reasonable, many will disagree as well.  Does that make them unreasonable?  What if courts separate on the decision.  Is one a reasonable court and the other an unreasonable one?

Even in Scott itself, is Justice Scalia reasonable and Justice Stevens unreasonable?  Well, yes.  Apparently so.  Because they disagree and, by definition, if one is reasonable, then the other who disagrees is not.  If they are both reasonable, as in “reasonable minds may differ,” then objective reasonableness fails to serve as the limiting criteria.  Everything can’t be reasonable, can it?  Well, turning again to our litmus test, Justice Scalia, the answer is obviously no.  After all, there has to be a winner and a loser, and Nino is definitely a winner.

Orin extends the issue to the infamous Utah taser video, that we’ve had so much fun with around here.  Orin clearly believed that the video could be seen as supporting either side, providing you squinted a bit and were willing to engage in rank speculation and quantum inferential leaping to justify the cop’s use of force.  But then, many were indeed happy to do so

How much easier would it have been to avoid the mental gymnastics and just asked ourselves one simple question: But what would Justice Scalia think?  You see, we’ve been missing the point the whole time, assuming that we (meaning each of us independently) are reasonable.  Nope.  We may be (at least on occasion), but we are not the ruler by which objective reasonableness is measured.  So what we think is totally irrelevant.  Right or wrong, we add nothing to the reasonable mix.  We can watch as many videos as we want, but we still have nothing to say about it. 

So when you make your next motion to suppress and are called upon to explain why the police action was objectively unreasonable, you now have a hard standard by which to Judge:  What would a privileged, conservative, white male jurist think?