Justice Roberts’s wit

One great thing about an opinion by Justice Roberts is, well, Justice Roberts’s writing:

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.

Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. … Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” … If his pockets contain a cell phone, however, that is no longer true.

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.

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6 Responses

  1. Gerard Magliocca says:

    I think he does too much of this sort of thing honestly. I find it kind of grating.

  2. Howard Wasserman says:

    I agree with Gerard. Consider this, from today: “modern cell phones, which are now such a pervasive and insistent part of daily life that
    the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

  3. Bill Araiza says:

    Count me in with Gerard and Howard. A few years ago he wrote an opinion that described a police officer’s work in some mock Sam Spade voice. Cringe-worthy.

  4. Joe says:

    The last comment really is not the same — it was a dissent from a denial sort of thing where == like concurring and dissent opinions == it is pretty different from an opinion of the Court. I don’t think a bit of wit really is a problem though it can be overdone. And, I’m sure there are cases, just like Scalia has long jumped the shark on that level.

    Really, is the comment about Mars a big deal? I find thinking it is kind of silly myself. YMMV.

  5. AYY says:

    I agree with the first three commenters. In a way it’s undignified and demeaning to the litigants. Moylan (Md. app) and Gardner (Cal. app) could do this sort of thing pretty well when it was called for, and one of the judges on the Ninth Circuit (who’ll remain nameless) can do it sometimes (maybe not quite as often as he might think), but most would do well to keep the witticisms out of judicial opinions.

  6. Joe says:

    Real sensitive subjects should also not be covered in law articles that have those cutesy titles.

    When the opinion as a whole is serious, I don’t think a few quips disrespects people. Are we really saying that a ruling, e.g., that broadly protects cell phone privacy is “disrespectful” because in thirty or so pages, Roberts tosses in quips? Or, are we saying the government is being disrespected here? Are we worried about their feelings?