Out of touch? Or out of context?

It’s pretty easy to dismiss the Supreme Court of the United States as “old” and “out of touch.”

The average age of the current justices is almost 70. They’ve generally spent their professional lives outside of the Supreme Court in academia or in circuit courts, appeals courts and the like. Midwesterners could point to the fact that all but one of the current justices were born in coastal states, the exception being outgoing Justice John Paul Stevens, a Chicagoan.

So, when the Chief Justice of the United States, John Roberts, asks the following question, the Internet, naturally, got a little worked up:

CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?

Of course, the Internet likely didn’t read the entire transcript of the oral arguments in Ontario v. Quon, a case with ramifications for electronic communications privacy. (NPR’s Nina Totenberg has the full summary here.)

It’s not uncommon for judges to ask “simple” questions or to reach for definitions. It’s part of the process of working through the legal minutiae. Even by reading the next part of the exchange, it seems clear that Chief Justice Roberts knows how email works, and that his original question was meant to tease out, on the record, the differences between a city-operated email account and a city-owned pager.

MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city’s computer, it goes through the city’s server, it goes through all the equipment that — that has — that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.

CHIEF JUSTICE ROBERTS: You can do that with e-mails.

MR. DAMMEIER: Certainly, certainly. But in this instance with the pagers it went through no city equipment, it went through Arch Wireless and then was transmitted to another — another person. …

A little later however, Roberts asks another naive question and does not give the appearance that he’s leading Dieter Dammeier, the lawyer for the texters, to a response for the sake of the record.

CHIEF JUSTICE ROBERTS: What happens, just out of curiosity, if you’re — 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?

MR. DAMMEIER: I don’t think that’s in the record. However, my understanding is that you would get it in between messages, so messages are going out and coming in at the same time, pretty much.

What’s ruling, News Cut Circuit Court? Out of context, or out of touch?

  • MR

    In this case, it’s out of context. It doesn’t mean that they’re not out of touch, but not in this case.

  • Shane

    Out of context. Like you stated, they ask simple questions in order to get more to the point or to find a definition.

  • Matt

    The quote above it is also cruical:

    JUSTICE GINSBURG: But my question is, an employee reads this policy and says, oh, my e-mails are going to be subject to being monitored -

    MR. DAMMEIER: Sure.

    JUSTICE GINSBURG: Wouldn’t that employee expect that the policy would carry over to pagers? When you think of what’s the reason why they want to look at the e-mails, wouldn’t the same reason apply?

    CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?

    MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city’s computer, it goes through the city’s server, it goes through all the equipment that — that has — that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.

    CHIEF JUSTICE ROBERTS: You can do that with e-mails.

    That’s why he asked. But Justice Kennedy’s comments regarding getting a text message sent at the same time as someone sending one alarmed me more:

    JUSTICE KENNEDY: Does it say: ‘Your call is important to us, and we will get back to you?”

  • Than Tibbetts

    Good points, all. It’s interesting to note that several sites seem to reference Roberts’ quote as asking the difference “between email and a pager,” when the record shows he said *the* pager and *the* e-mail.

    A small difference, but huge in terms of understanding what’s really being said. If you’re going to try and boil it down to an eye-catching, click-generating headline, well… I call shenanigans.

  • JackU

    Thanks Matt for the additional lines. Because as someone who has to enforce and help write those kinds of things I can tell you that my answer to Justice Ginsburg, would be “maybe”. Which is where I think the Chief Justice was going with is comment and question. We have a multi-part policy on electronic equipment. Basically there is a section on computer use, which includes email and Internet components. There are additional rules for laptops with specifics related to taking a company computer out of the building. Cell phones and related devices have their own section. If the policy is vague then employees could contend that they didn’t realize there was an equivalence between text messages and e-mails.

    I like the lawyer’s distinction that email is under our control because we own at least some of the equipment it goes through, the pager/text messaging device not really.

    So yes it’s out of context in this case.

  • Al

    Out of context. Matt’s added line do add some clarity. It certainly seems to me like he is trying to get at the crux of the argument, the difference between the two forms that makes them different with respect the issue in the case. But then what would you expect out of a culture that prefers it’s news in 140 character chunks and keeps watching TV news with single sentence ‘stories’?