[Orin Kerr, October 14, 2008 at 11:49pm] Trackbacks
Interesting Comment On Pennsylvania v. Dunlap:
It's tricky ground to credit anonymous blog comments, but the earlier thread on Chief Justice Roberts's dissent from denial of certiorari in Pennsylvania v. Dunlap brought out an interesting comment by "Anon Philly ADA" that I wanted to highlight. An excerpt:
  I argue Dunlap motions every couple of days, so . . . I thought I'd share a few thoughts for some of the commenters above.
  First, Dunlap probably doesn't let a lot of drug dealers go free. It lets a lot of drug users go free. Our office refers to Dunlap motions as "first buyer motions" because it's pretty difficult to get the first buyer convicted. The second and third and fourth buyers are no problem, and neither is the dealer if there are several observed sales. Usually the cops will wait around for a couple of observed sales anyway (or will use a confidential informant, not an undercover officer, over a period of time), or will get some other evidence of dealing (scales, large amounts of cash) through a search warrant.
  . . . . The makeup of the PA Supreme Court has changed since Dunlap and it's possible that they'll reverse the decision themselves when the right case is brought up on appeal. Or at least that's what we're all hoping for. Until then, don't worry, we'll keep trying to put away the bad guys.
  A few readers in the thread were also puzzled as to why Roberts wrote the dissent in such an exaggerated style. I can't be sure; perhaps it was just to be entertaining. But I would think that a dissent from denial of certiorari that gets a lot of media attention would be highly likely to be read closely by the Pennsylvania Supreme Court Justices. In contrast, I'm not sure sure that the same would be true with a dissent from denial of certiorari that the media ignored. While I personally think that first paragraph was a bit much — did we really need "tough as a three dollar steak" to enter the legal lexicon? — it was entertaining enough to have been picked up by the MSM and read pretty widely around the legal blogosphere.
gerbilsbite:
My personal conspiracy theory: I think he did it because there are only so many column inches that will be devoted to SCOTUS activities on a given day, and this may have provided a distraction from the denial of cert in the Troy Davis case, which could have had major repercussions for capital law. By releasing the denials at the same time--one without comment, one with a funny dissent--attention got focused on the one less likely to cause a stir.
10.15.2008 1:42am
Viceroy:
Writing gimmickry tends to detract from the weight of the opinion in the minds of most jurists.
10.15.2008 2:34am
OrinKerr:
Viceroy,

It seems to me that when you're the Chief Justice of the United States, joined by the Court's swing vote, you don't have to worry about state judges being turned off by a paragraph of gimmicky language followed by several pages of pretty devastating legal analysis.
10.15.2008 2:37am
David Warner:
"What thou wilt thou shalt rather enforce with thy smile than hew to it with thy sword."

Shakespeare, Timon of Athens
10.15.2008 3:28am
Dilan Esper (mail) (www):
Viceroy:

In addition to Professor Kerr's point, is there any evidence that this is really true? Several people mentioned Flood v. Kuhn in the earlier thread-- writing gimmickry if there ever was any-- and yet as far as I know, Flood is good law on the issue of legislative acquiescence and stare decisis.
10.15.2008 3:34am
Mike& (mail):
I would think that a dissent from denial of certiorari that gets a lot of media attention would be highly likely to be read closely by the Pennsylvania Supreme Court Justices.

Do you view that as an abuse of his judicial role? It seems like Roberts might be pulling a Breyer (thinking of the "letters to Congress via S.Ct. opinion" discussion of a while ago).
10.15.2008 3:49am
David Warner:
Another interesting question: What were the other seven saying by their denial? Some strange fellows in that bed.

Maybe this was just a shout out from JRob to his boy John McCain to bolster the R law-and-order street cred in PA.
10.15.2008 4:23am
john dickinson (mail):
Do you view that as an abuse of his judicial role? It seems like Roberts might be pulling a Breyer (thinking of the "letters to Congress via S.Ct. opinion" discussion of a while ago).

"Letters to a state S.Ct. via Public opinion"?
10.15.2008 4:55am
Bill O'Hara (mail) (www):
It overstepped the bounds of professionalism, but then again, I could really care less. It was a dissent, attempting to prove a point. If it had been an opinion... well... I did just read a case where the judge repeatedly quoted Wayne's World...
10.15.2008 5:19am
Kent Scheidegger (mail) (www):
I think the point was to emphasize that ivory-tower appellate judges should have more respect for the judgment of cops on the street based on their practical experience. The medium is the message.
10.15.2008 10:21am
ChrisIowa (mail):
I think the first couple lines came to him in a sudden inspiration and he played with it for his own amusement, with no other motive. I've done that kind of thing myself in technical reports.
10.15.2008 11:01am
tbw:
The language of the first paragraph bothers me less than the fact that Justice Roberts stated that he would reverse the decision at the certiorari stage. Granted, any number of factors, such as the fact that he is very knowledgeable, may have obviated the need for briefing the merits or oral argument. However, I question the decisional quality of an opinion written without the usual rigorous argument of the merits.
10.15.2008 11:14am
RHD72 (mail):
Ridicule can be powerfully persuasive when its object is as foolish and disconnected from reality as the PA S Ct's rule. Roberts set it up nicely by describing the scene as Sgt. Joe Friday, Philip Marlowe or Sam Spade would have done. Just the facts, ma'am. The "tough as a three dollar steak" phrase was inspired given the hard-boiled, true crime model Roberts was invoking.

So what's all this complaining about "gimmickry" just because Roberts adapted a well-known literary model to make his basic point in an arresting way (pardon the pun)? Since when has boring and dull become a virtue in judicial writing, just because that's (unfortunately) what we've all become used to?
10.15.2008 11:37am
Viceroy:

I think the first couple lines came to him in a sudden inspiration and he played with it for his own amusement, with no other motive. I've done that kind of thing myself in technical reports.


This is exactly the problem. Kent Scheidegger states the point well, there's no need to include any literary allusions in there.

I just have a problem with any opinions that contain poetry, stories, or pop culture references. If you want to entertain, write a short story for a magazine. I'm sure they will publish it.
10.15.2008 11:39am
Redlands (mail):
Bryan Garner would probably give him high marks.
10.15.2008 11:42am
Kent Scheidegger (mail) (www):

Roberts set it up nicely by describing the scene as Sgt. Joe Friday, Philip Marlowe or Sam Spade would have done.

Certiorari was also denied in Marlowe's case the same day, Justice Scalia dissenting.
10.15.2008 12:24pm
badger (mail):
I can't argue with Roberts trying to find an entertaining way to bring his dissents to the masses. But, considering that this comes from a man who worries that videotaping oral argument (or, god forbid, conferences) risks incentivizing grandstanding by justices, I have to say that it's pretty inconsistent.
10.15.2008 1:56pm
Oren:

Roberts set it up nicely by describing the scene as Sgt. Joe Friday, Philip Marlowe or Sam Spade would have done.

Of course, everything looks criminal when phrased in the language of pulp crime novels.

We could just as well write the scene from the point of view of the defendants:
"I step outside my house for a smoke and see my buddy Vinny. Nice evening he says and wishes me good luck at the interview -- I shake his hand and apparently that's all the proof they need."

Robert's literary flourish is just a fancy way of begging the question.
10.15.2008 6:05pm
OrinKerr:
Oren,

Um, no, you're wrong. Probable cause is measured from the perspective of the police, not the defendants.
10.15.2008 6:22pm
pete m (mail):
Oren - "Vinny" was all the probable cause they needed.
10.15.2008 7:12pm
Anon Philly ADA:
Prof. Kerr,

Thank you for crediting my anonymous (but highly credible!) thoughts. I think you may be right about Roberts's motivation.
10.15.2008 11:52pm
David M. Nieporent (www):
Um, no, you're wrong. Probable cause is measured from the perspective of the police, not the defendants.
Surely that's not right; probable cause is measured objectively, isn't it? Sure, it's measured based on the knowledge of the police, but that's not quite the same thing. Otherwise nothing would ever be suppressed for lack of p.c., and the warrant requirement would be superfluous.
10.16.2008 6:06am
OrinKerr:
David,

PC is measured from the perspective of the police, based on evidence that they know.
10.16.2008 1:18pm
Oren:

Um, no, you're wrong. Probable cause is measured from the perspective of the police, not the defendants.

and
PC is measured from the perspective of the police, based on evidence that they know.
In the instant case, nobody disputes the evidence or the fact that there was no evidence of illegal activity. What the police had was an inference and the test, if I'm not mistaken, is whether that inference is reasonable.

IMO, in this case, the inference that two gentlemen meeting briefly at night in a high crime neighborhood must be exchanging drugs is borderline since there are so many innocent explanations.
10.16.2008 6:16pm