Over at SCOTUSblog, Marty Lederman notes a rather curious footnote in Justice Stevens' dissent in Scott v. Harris. In footnote 1, Justice Stevens speculates about why he has such a different view of the videotape than the Justices in the majority. Stevens speculates that the Justices in the majority may have overestimated the risk of the chase because they learned to drive when most high-speed driving took place on superhighways:

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 super-highways — —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.

  This is a strange suggestion, I think. If I understand Stevens correctly, he's suggesting that perhaps Justice Scalia (who is 71) can't accurately judge the dangers of driving at high speeds on a back road because he's too young to have learned how to drive comfortably in that sort of setting.

  Perhaps Stevens' suggestion is just too quirky to respond to, but I think it's worth noting a flaw on its own terms. Justice Stevens was born in 1920, so he probably learned to drive in the late 1930s. At that time, though, cars simply didn't go as fast as the 100 mph of the chase in Scott v. Harris. Most cars on the road in the late 1930s topped out at around 60 mph. For example, an early 1930s Model A Ford could hit around 65 max. The most powerful cars of the era could hit 90mph or so if you gave them miles of straight road — and if you were so lucky as to be driving a new supercharged Auburn Speedster, you could hit 100+ — but such speeds weren't easy to reach on winding and twisting roads. (Plus, cars of the day ordinarily were geared for lower speeds, so driving at top speed put a serious strain on the engine.)

  I personally find this "generational" argument highly dubious in any form. But if you find it persuasive, it seems to me it might just as readily work against Stevens as for him: Perhaps Justice Stevens is misjudging the dangers of the chase because when he thinks of "high speed" driving on a two-lane road, he thinks of a chase at what were considered high speeds back when Justice Stevens learned to drive.