91. Micro-solipsism

The Washington Post's article on the Supreme Court's recent Georgia v. Randolph decision, written by Gina Holland, was headlined: "High Court Ruling Limits Police Searches".   That's one way of looking at the result.  Another way is this: The Supreme Court held that the United States Constitution prohibits a wife from inviting people into the marital home over her husband's objection.

Another way to describe the holding of the case is this: The Supreme Court ruled that police must conduct investigations in conformity with what the star of next summer's hit movie, The 66-Year-Old Virgin, thinks is the "commonly held understanding" about wives' authority to invite guests into  their own homes.  A justice  who famously has no life outside the law, but whose position isolates him from his professional peers, has decreed that his boy-in-the-bubble conception of social norms is written in granite, impervious to change by democratic means or, paradoxically enough, by shifts in social norms.   "[N]o sensible person would go inside under those conditions", Justice Souter wrote, apparently in the sincere belief that by making up phoney sociological data he has somehow proven the meaning of the Constitution.

Or: The Supreme Court ruled that when a wife reports that her husband is in possession of cocaine, and asks the police to enter the home to seize it, and the husband objects, the police must place husband and wife in the back seats of separate patrol cars and keep them there for as long as it takes for the officers to obtain a warrant to search the house or the husband relents, whichever comes first.

Or:  The Supreme Court ruled that, if any five of the elderly justices think that certain behavior is outside the social norm, therefore that behavior is forbidden by the Constitution, but only if engaged in by officers who aren't involved in normal social relationships with the people with whom they come into contact.  And if police engaging in that behavior find evidence of a felony offense, judges presiding over the resulting prosecution must conceal that evidence from the jurors who are dragged out of their daily lives to decide whether the person on trial possessed the seized object or not.

Or: The Supreme Court ruled that, when judges are presented with evidence gathered by police in such circumstances, they must act like Nicole Sullivan's Vancome Lady, plug their ears and chant, "La la la la" until the prosecutors go away.

There are, in short, lots of different ways of viewing Georgia v. Randolph.   (CrimLaw.com links to commentary around the blogosphere - even without the impetus of worldwide riots, most commentators feel compelled to treat the decision with the reverence the faithful demand of Danish newspapers.)  But what's really interesting is that the Washington Post chose to view the case in the way that those of us inside the legal pyramid are required to view it.

In the law biz, we have to act as though we believed that the facts of the case, as set forth in the justices' opinions, are the only facts relevant to the justices' decision.  We have to act as though we believed that they decided the case solely for the reasons they vouchsafe to us.  We have to act as though we believed the rule they announce is actually required by the Constitution.  Most of all, we have to act as though everything the Supreme Court does is not only wise, but makes sense. 

But no one not actively engaged in litigation has to accept the legal system's solipsism.  (See post 89.)   So why does the reporter for the Washington Post?