Ignorant but not dumb: known unknowns and the Supreme Court

A link on Twitter led me to a post at the Law Blog of the Wall Street Journal.  Ashby Jones had fun mocking Our Tech-Savvy Supreme Court.

They were hearing oral arguments in City of Ontario (California) v. Quon.  At issue was whether a member of the Ontario police could expect privacy for personal messages received on his SWAT-team pager, and whether people sending texts to that device could expect that the recipient’s employer would not review those texts.

Jones highlights some remarks by the justices:

  • Chief Justice Roberts asked what the difference was between e-mail and a pager.
  • Justice Kennedy wondered whether, if you’re sending a text as one arrives, the person who sent that one sees something like “you call is important to us; we’ll get back to you.”
  • Justice Scalia asked whether a sent text doesn’t go right to the recipient.  (Jones thinks he was confused by the idea of a service provider.)

(You can judge for yourself, if you’d like.  Here’s the transcript of the oral arguments.  I think the remarks that Jones highlights are at pages 29 [Roberts, email and pages], 44 [Kennedy, your call is important], 48-49 [Scalia, service providers; printing texts].)

Yes, it is amusing if you think the youngest member of the Court doesn’t know the difference between email and a pager.  But that’s about all it is, amusing.  What I think is more pertinent here is that the justices were asking questions to better understand things unfamiliar to them, and that they were focusing on larger issues and not the details of technology.

For instance, Jones left off the first part of Roberts’ question, so I’ll highlight it here:

Maybe everybody else knows this, but what is the difference between the pager and the e-mail? (transcript, page 29)

I have no idea what level of techno-expertise Roberts has, but I’d guess he’s more familiar with email than with pagers, and trying to understand (a) what the difference might be, and (b) whether that difference makes a difference.

In terms of the busy-signal question from Justice Kennedy, it turns out that a few minutes earlier, Roberts had asked:

What happens, just out of curiosity, if you — he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis?  Does he — does the one kind of trump the other, or do they get a busy signal?

To which the attorney answered, “I don’t think that’s in the record,” which is how a lawyer often phrases “I don’t know.”

As for Scalia’s remark about where a message goes, my guess is that he was being facetious (though we can’t know till there are audio recordings of oral arguments).

A discussion (starting about page 45 in the transcript) had to do with whether it made a difference that the text messages were handled by a service provider.  Scalia asked whether, when you send a text message, you’re pretty much aware that it remains private only if the recipient “or somebody else who has power over the recipient” chooses to look at it.  The lawyer said yes.

Roberts:  Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.

Dammeier (attorney): Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message.  And —

Roberts:  Well, I didn’t — I wouldn’t think that.  I thought, you know, you push a button, it goes right to the other thing.

Dammeier:  Well —

Scalia:  You mean it doesn’t go right to the other thing?


You may not agree with the opinions that the justices issue, but I think the transcript illustrates several things.  First, they’ve gotten a grasp of the legal issues in the case (which is, after all, their job).  Second, they’re more than willing to ask questions.  Third, as evidenced by Roberts, at least some of them are unafraid of saying, “I don’t understand X.  Can you explain it to me?”

Which isn’t a bad way to start learning more about things you know that you don’t know.

Supreme Court image adapted from this CC-licensed photo by Virginia Foxx.

4 thoughts on “Ignorant but not dumb: known unknowns and the Supreme Court

  1. Very good points! Why would they know how a pager works – judges aren’t exactly on the emergency contact list (esp Supreme Court justices). Few of them would ever have had access to one, let alone known the intricacies of the technology. And they probably aren’t terribly tech savvy because their clerks do a lot of leg work for them, which is as it should be – they have bigger things to think about.

    The important thing, and the heart of your post, is knowing what you don’t know and having the courage to ask questions. I’m sure the justices knew how silly their questions would sound, and they probably felt like 100-year-old ludites asking them, but they ASKED because it was important.

  2. Tonya:

    I can see many facets here. Frankly, pagers are pretty much off my own radar screen. When I worked for an information-services company, lots of our tech staff had them–but that was mainly before widespread use of cell phones. In a way, the pager was the smartphone of its time, in a reach-me-when-you-need-to, carry-it-in-my-pocket sense.

    If I’m honest, I don’t like looking as though I don’t know something, either — especially if I think it’d be good to know that something.

  3. You’re kind of a high-tech, highly-wired guy, Aaron.

    I do think they’re fading, since even a not-very-smart phone can receive text messages, but they haven’t disappeared any more than fax machines have.

    I have a suspicion (though little evidence) that a lot of government bodies lag, technologically. Some of it’s inertia; some of it’s the pain of having to justify nearly every purchase to people yelling about waste and fraud. Even when I was with GE, our component (whose business was information services) resisted upgrading just for the sake of having the latest. It’s not a bad approach and aligns with my practice of not buying anything with a low serial number.

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