The Reasonableness of Reasonableness

In a post at Slate, my buddy Cristian Farias writes about Chief Justice John Roberts’ cute quip during oral argument in Rodriquez v. United States, and its significance in deciding this case questioning how long a traffic stop can be extended to wait for the drug dog to show and do as he’s told:

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

When the CJ makes a funny, everyone does the obligatory chuckle. And in fairness, it was cute, so why not?  But Cristian’s point is that, while it was presented as a quip, it may have revealed the fact that Roberts’ experience with traffic stops may not be the same as others. Indeed, he may never have been stopped at all.  Cristian sought confirmation of this question but received no reply.

He asserted that Roberts’ lack of experience, his naïveté when it came to traffic stops, was a problem.

But to anyone who closely watches the court’s jurisprudence on the Fourth Amendment, there’s nothing funny about Roberts’ naiveté about traffic stops, let alone his ignorance of the real frustration that comes with being kept even a second longer than necessary.

Traffic stops are by far the most common law enforcement interaction between police and citizens.  Is it possible that Roberts is one of the few people in America who has never been stopped?  Even so, is it possible that Roberts’ only understanding is from idealized descriptions in sanitized briefs or, I shudder, television shows?  And if so, does this lack of experience preclude him from sufficiently understanding the experience to be capable of offering a valid opinion?

Some commenters criticized this detail, whether accurate or not, by arguing that experience is over-rated. After all, a judge need not be a bank robber to decide whether robbing banks is a bad thing.  Orin Kerr, on the twitters, questioned what experience was at stake:

Also, what “experience” matters?  As a citizen, suspect, prosecutor, trial judge, head of a prosecutor’s office, academic?

Where almost all this criticism goes astray is in distinguishing what the Supreme Court is called upon to decide, and that is the reasonableness of an intrusion upon the freedom of Americans.  To lawyers, this may be somewhat obvious, and unworthy of specific mention. Reasonableness is that vague, blurry area between the bright line of police authority and unreasonableness.

Reasonableness is subjective, a feeling, a sense that goes along with a shrug to proclaim that maybe it’s less than obvious, but it’s not so bad, so hard, so long, that it is unreasonable.  And as a doctrinal test goes, it’s a great one in the sense that it’s pretty hard to argue against being reasonable.  Try standing up before a judge are saying, “but your honor, it’s wrong to be reasonable.”  Sounds kinda silly, right?

But by deciding that a rule of reasonableness should prevail, the Court essentially determines how much of our life should be expendable for the sake of law enforcement.  The determination is deeply personal.  The determination is situational.  Judges are giving away a piece of your life based upon their “sense” of reasonableness.

Nine judges are deciding that it’s more worthwhile to allow police to hold you in place until the cruiser with a dog arrives than allow you to go so you can be there to pick up your 7-year-old child at school.  Or get to the hospital before your mother dies. Or leave without the dog detecting the kilo of weed in your trunk.

No, a judge doesn’t need to have experience as a bank robber to decide a bank robbery case, because there is no reasonableness determination involved. But here there is, and experience matters.  What experience that is, however, is unclear.

In a perfect world, each Justice would have the experience of the person whose rights are at stake.  Orin asks about experience from the victim’s or prosecutor’s perspective, but the Fourth Amendment doesn’t exist to protect the interest in obtaining a conviction. On the other hand, the police power does, and society has an interest in police preventing crime, which is (theoretically) manifested in laws. Shouldn’t we give the cops the opportunity to do their job?

The traffic stop is something of a special situation. A stop, which is a seizure for Fourth Amendment purposes, is for a specific purpose, a violation of vehicle and traffic laws. It’s not an opportunity to engage in a baseless fishing expedition to catch drug dealers or seize property. So where is the nexus between a guy stopped for speeding and the likelihood that, for no particular reason, he has that dreaded kilo of weed in the trunk?

That’s not to say it can’t happen. It can, and it does. But there if so, it’s pure kismet.  Search enough cars and eventually you’re going to find something.  But in the process of searching enough cars, a whole lot of people will be left cooling their heels on the side of the road, seized by the police, losing chunks of their life upon threat of arrest or worse, for no sound reason.

This seems so obvious to anyone with a realistic understanding of how traffic stops happen, and happen to even nice, normal, ordinary folks who occasionally drive faster than a sign says, or have a tail light out.  Is it worth a chunk of 1,000, even 10,000, lives to catch that guy with the kilo in the trunk?

What does it mean to the 1,000, even 10,000, drivers to sit there, beyond the length of time needed to process (whatever that means) a ticket, as they await getting on with their lives, doing whatever it is they need to do, putting their freedom to pick up their kid or just cruise the highway ahead of the cops’ authority to hold them until the dog arrives? And then hold them as the dog alerts, their car gets searched, maybe dismantled, they get questioned and, if they say or do something to annoy their interrogator, get treated harshly?

Will Chief Justice Roberts’ experience, or lack thereof, make it impossible for him to understand the implications of his sense of reasonableness for those who don’t get the benefit of telling the cop who stopped them that they work for the Department of Justice, or sit on the Supreme Court?  Not impossible, perhaps, but far harder than it should be for a guy whose job it is to impose his idea of how much of your life is expendable to the cause of law enforcement.

So if the determination is going to turn on how much of your life, of my life, the cops get to squander for no good reason, because it seems reasonable to a guy who has never been on the receiving end of a nasty cop, a cop who is in search of a car to seize for fun and profit, or had a 7-year-old sitting on the school house steps wondering why daddy didn’t come to pick her up, then experience matters.

As Oliver Wendell Holmes said, “the life of the law has not been logic: it has been experience.” What experience does Chief Justice Roberts bring to our table? From government lawyer to judge, it’s not the experience that the rest of us have, yet this informs his sense of reasonableness. If we were all Supreme Court justices, maybe this would suffice, but we’re not.

There may be no perfect experience for a justice to possess to decide every case before him, but it’s fair to say his experience ought to be better than the experience of watching reruns of CHiPs or Adam 12.  It’s hardly unreasonable to expect some real-world experience from the folks who will decide that our lives are expendable. After all, it’s our time, our lives, at stake here, and the person who will tell us what’s reasonable ought to have a clue how it affects us.

 

 

23 comments on “The Reasonableness of Reasonableness

    1. SHG Post author

      People used to be nice enough to privately let me know of a typo so I could fix it without having to make sure it was pointed out to all readers, confirming that my people have no tradition of proof reading (sorry, Ken).

      1. Patrick Maupin

        Making baseless inferences that I’m a “people” is bad enough, but the implication that my kind used to be “nice enough” is more than I can take. When have I ever commented on your heritage, Greenblatt?

        (And don’t bring Ken into this unless you’re prepared to give up your pony.)

  1. Turk

    Each time we replace a SCOTUS judge we bemoan the lack of real-world experience from the pool of Yale and Harvard grads on the short list, who have spent a life in academia or public service.

    Stick this post in that file.

    1. Myles

      You are so right. There is no point in SHG writing about any issue that’s been the subject of prior discussion, no matter what the context. Thanks for point that out. SHG owes me 3 minutes.

  2. Turk

    This also brings to mind Judge Douglas Ginsburg going down in flames as a SCOTUS nominee because he used marijuana while in school.

    If the folks selected to sit on the high court don’t have real world experience, or at least represented folks that did, the concept of “reasonable” will inevitably shift from that which was originally intended.

    1. SHG Post author

      I would agree, but since this post belongs in the “bemoan the lack of real-world experience from the pool of Yale and Harvard grads on the short list” file, it hardly seems worth it.

    2. Andrew

      Not everyone can analogize the use of a schedule I drug with having a broken tail light. That was awesome.

      By the way, what was “originally intended”? I wasn’t around in 1789.

      1. Rick Horowitz

        Not sure if you’re saying you don’t know how to read (which would be odd, since you somehow read at least one comment), or if you were saying you read, but could not ascertain meaning when you read (also odd, since you understood well enough to be sarcastic), or if you just don’t want to do the reading yourself to figure out why Turk said what he said.

        It’s not hard, though, to read enough, and make sense of enough to see that just in our own lifetimes the meaning of the Constitution has been warped to the point that it is nearly — to quote a Supreme Court justice other than Roberts — a useless piece of paper.

        But I guess as long as we pretend its meaning in 1789 is all that counts, and that we can never fathom such ancient English, then the erosion of unalienable rights today is perfectly acceptable.

      2. Turk

        Not everyone can analogize the use of a schedule I drug with having a broken tail light. That was awesome.

        Thank you. I presume you thought the busted tail light was more dangerous to the public.

  3. Pingback: Who is a reasonable man? | a public defender

  4. Rebecca

    What’s stopping the justices from getting that experience first-hand? It would be nothing to stage this so they can experience the thrilling sensation of sitting on the side of the highway while a cop runs their license plate number (or whatever it is that cops do). Let them do a sobriety test on the margin of the road at 1 a.m. Let’s also let the justices go through a stop-and-frisk and get strip searched before spending a night in jail. Why the hell not? It would help them make the proper decisions, wouldn’t it? And if they’re going to rule on whether these things are “reasonable” or not, they should experience it.

    1. SHG Post author

      This has been a longtime suggestion, that every person who wants to be a judge should know what a cavity search and week in prison feels like, etc. Same for prosecutors, by the way.

      But in a discussion dealing with a real situation, as here, this doesn’t help. Supreme Court justices (as well as all appellate judges) base their decision on the record; they don’t field trips to investigate for themselves, and they shouldn’t for a lengthy list of reasons. Similarly, there is no reason to expect their one “experience” will be representative of anyone else’s, informative or valuable. Do old white guys have the same experience with car stops as young black guys? If the Supreme Court justice’s experience goes fine, does that mean everybody’s is fine?

      Yes, they should have these experiences, but they should gain them organically.

    2. Turk

      No need for them to have been through it themselves. It would be sufficient (for me) if at least a few of them had the experience of defending others that had been through it.

      But I think you can count on zero fingers the number of justices who have practical experience in either crim defense OR plaintiffs civil side. That is a spectacular dearth of experience for the real world.

      1. SHG Post author

        I’ll take Sotomayor’s prosecutorial experience over none at all. We can’t expect perfect, but it’s hardly unreasonable to expect justices with some sort of real experience.

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