Monthly Archive: May 2007

I’ve always enjoyed hearing Justice Stevens’ laconic, flat, Chicago-y accent on the bench and his dry sense of humor at public appearances. But at the ripe old age of four hundred, he is growing ever-crotchetier, and it’s enjoyable to watch. In my mind’s eye, I picture the “Stop it! Stop this jibber-jabber!” judge from Boston Legal. (In sincerity, my affinity for Justice Stevens is real.)

Granholm v. Heald, 544 U.S. 460 (2005), was a case involving the validity of States’ restrictions on wine shipments direct to the consumers in those States, usually over the Internet. Those who wanted the Court to permit out-of-state shipments direct to the consumer argued that the restrictions were an impermissible interference with interstate commerce, and they won the day.

Justice Stevens was among the dissenters. His argument was that section two of the Twenty-First Amendment, which repealed Prohibition in this country, “should be ‘broadly and colloquially interpreted,'” so that States may retain the power to restrict alcohol shipments if they want to. What I remembered about this case was that he referred to “those members of the younger generations,” and pointed out that his position on the amendment was based on his “understanding (and recollection) of the historical context.” In other words, Don’t try to tell me what the Amendment means — I’m the only one here old enough to remember it happening!

But I think yesterday’s high-speed car chase case offered Stevens the chance to write an even crankier dissent. In that case, Scott v. Harris, ___ U.S. ___ (2007), Georgia police clocked a driver doing 73 in a 55, and they tried to pull him over. Rather than just pulling over, the driver led the police on a dangerous, nearly ten-mile chase through intersections and a strip mall parking lot at speeds of over 85 mph. When the lead police car finally rammed the driver’s car in an effort to stop him, the 19-year-old driver’s car pitched over an embankment, rendering him paralyzed. He sued the police, claiming that they violated his Fourth Amendment rights against unreasonable seizure.

The decision, which was 8-1, held that the District Court and the Court of Appeals both incorrectly denied the police’s motion for summary judgment, which had the effect of permitting the driver’s case to go to a jury for a determination whether the police actions were “reasonable.” The Supremes, all except Stevens, said that on a motion for summary judgment, the court is supposed to construe the facts in the light most favorable to the non-movant — except when no reasonable jury could believe the non-movant’s version of the facts. Because the lower courts shouldn’t have believed the driver’s explanation of his own conduct, the majority (in an equally amusing opinion by Justice Scalia) held that the lower courts got it wrong. The majority noted that there was a videotape in the record that disputed the driver’s version of the facts. “[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test[]. . . . The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.” Because the tape depicted a “Hollywood-style car chase of the most frightening sort,” it totally contradicted the facts the driver alleged, and the lower courts should not have adopted them. The Court took the unusual step of posting the video on its web siteand citing the URL in a footnote. You hear the police giving the orders to “take him out.” (Is nothing not on YouTube? Don’t bother with the Court’s link, go here and here.)

Justice Stevens, writing only for himself, dissented. The reason: the tape wasn’t as terrible as the rest of the justices believed, so the reasonableness of the police actions should have gone to a jury. What’s the big deal, he asked, writing that the “13 cars that respondent passed on his side of the road[,] … and both of the cars that he passed on the right[,] … no doubt had already pulled to the side of the road … because they heard the police sirens or saw the flashing lights” before the reckless driver got there. The rest of his opinion is also full of other descriptions that serve to minimize the danger created by the driver who was fleeing the police at 85+ mph. He also gets in a few good slams at the other justices, referring to them as “eight of the jurors on this Court” and “my colleagues on the jury.” But the best part of the opinion has to be footnote 1:

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 superhighways — 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.

I do love a good dissent.