The law is so very concerned with reason and reasonableness. The Fourth Amendment doesn’t apply if a search is “reasonable”. Actions of parties suing others are judged by what a “reasonable person” would do. Prosecutions have to be proven beyond a “reasonable” doubt.
If you read my post on the latter, you will no doubt have learned that “reasonable”, in the law, is an undefinable term. When you tell a person that “reasonable doubt” means “doubt for which you can assign a reason”, you are telling them the same thing, just backwards and it does nothing to further illuminate this elusive meaning.
The application of reasonableness in Fourth Amendment law is gaining traction in recent years and this demands that we ask the question: who on the Supreme Court is reasonable? Cristian Farias, writing at Slate, points out that when the Chief Justice of the Supreme Court of the United States has never, ever, ever in his life been so much as pulled over by a cop for the measliest of traffic violations, how will he be qualified to decide if a police officer unreasonably lengthened an encounter in order to expand an illegal search?
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.’ ”
This lack of experience with something so frequent and routine as a traffic stop has already affected the way he has ruled in other car search cases:
Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided [PDF] that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.
“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”
Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”
Scott Greenfield, following up on a conversation Cristian had with Orin Kerr, fabled lawprof and Fourth Amendment scholar, answers the question: what experience, then, is necessary? In order to decide a ruling in a murder case, judges need not be murderers.
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.
The greatest complaint among defense lawyers when it comes to the appointment of judges has been that politicians routinely nominate those who’ve never worked a day in the real world, instead picking among life-long law professors or government policy lawyers. Those who operate in a world entirely unlike the one whose interactions they will have to adjudicate. The universe from which judges are selected is one where there is little diversity of background and life experience and that background comprises only a small percentage of that of the American population as a whole.
Meanwhile, judges are quite quick to assume certain truths about the difficulties of policing in America and the dangers faced by officers. Their opinions seem to place great weight on ensuring that officer safety is protected and that their decisions enhance the crime solving function instead of hindering it. In other words, they come from a rather strong law-and-order perspective. Their assumptions seem to be that police are almost always in the right and that any interaction that a lay person has with law enforcement is the subject’s fault and tinged with some indicia of guilt.
I’ve written before why it’s easy for people in their position to feel that way and how powerful and addictive a drug living in a cocoon of moral superiority and ignorance is.
If I were to come to your house and tell you what a reasonable temperature is for cooking a steak, would you listen to me, knowing full well that I’ve never eaten, much less cooked steak in my life?
Why should we, then, trust Justice Roberts to tell us whether it is reasonable for a police officer to detain me for 5 or 10 or 20 minutes on the side of the road, while that number just happens to correspond to however long it takes a drug sniffing dog to arrive to ferret out the drugs in my car?
To me, that sounds completely unreasonable.