Joel Jacobsen

The first crudity of legal reasoning is categorization, the insistence that reality mold itself to judges' conceptions rather than the other way around.  (See post 137.)  The process of categorization is greatly aided by made-up data.  (See post 139.)   A Supreme Court justice can "prove" that a case falls within or without any given category simply by making up sociological or psychological data.

Justice Souter provided a perfect example in Georgia v. Randolph.  That's the case in which he declared that because women in our society can't invite guests into their homes over the opposition of their husbands, therefore the Constitution denies women the authority to consent to police searches of their own houses, when hubby is present and objecting.  (See post 91.) 

(In fairness I should note that, as Chief Justice Roberts pointed out, the Constitution draws a key distinction between belligerent hubby standing in the front door, on the one hand, and drooling hubby asleep in the Barcalounger in the living room, on the other hand.)

Anyway, Souter's analysis proceeded from the premise that fourth amendment protections depend on "widely shared social expectations".  Either the police acted in line with widely shared social expectations, or not.  Those categories are the only two possibilities.  The first category is labeled "constitutional."  The second category is called "unconstitutional."

But how to determine which category a given event fits into?   If you wanted to reach any sort of reliable conclusion, you'd first have to determine what social expectations are widely shared.  Are there, in fact, any social expectations shared by all 300,000,000 of us?  By New Yorkers, Alabamans, Alaskans and New Mexicans?  By New Orleans Creoles, native Hawaiians, immigrant Chicago taxi drivers, Wyoming ranchers and Boston Brahmins?

It seems doubtful.  But Souter didn't say universally-held.  He said: widely-held.  So how widely is that?  Would 150,000,001 people be enough to establish the concrete meaning of the Constitution? 

But then you might ask how anyone could go about figuring how widely-shared a given social expectation is.  A massive series of simultaneous surveys?  In-depth sociological studies?  Focus groups?  But then you have the problem of shifting social expectations.  No matter what data-gathering technique was eventually settled on, is there any realistic possibility that one could publish the data before it became obsolete? 

Sure there is.  It's even easy.   Tom Lehrer's Lobachevsy advised: "Plagiarize!"  But there's a still easier way.  It's the Souter way: Fabricate!  You don't have to have any basis in observable reality for your generalizations about reality: you can just make it up.  It's fast!  It's easy!  And best of all it's free!

Here's Souter cranking out the fabricated sociological data in Randolph:

[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.” Without some very good reason, no sensible person would go inside under those conditions.

That "it is fair to say" at the beginning is a tip-off.  It's like an ordinary lawyer starting a sentence with  "clearly": it would be unnecessary to say it if it were true.   Souter, the elderly hermit, might have some idea about how bookish New England millionaires of a certain age would act in such a stressful situation.  (Timidly.)  But his datum about sensible people is what in scientific circles they call "fraud."  Historians become pariahs within their profession for engaging in that kind of thing.

 Souter's fabricated data is, however, not the problem, but the symptom.  Randolph's categories - widely-shared social expectations over here, less-widely-shared social expectations over there, and never the twain shall meet - have no objective existence.  They're just conclusions.  

The very concept of "widely shared social expectations" is, taken on its own terms, laughably at odds with the idea of a Constitution, those words carved in granite which form the bedrock of the cornerstone of the foundation of the load-bearing wall of our national edifice.  Taken on its own terms, Souter's opinion means we can't change the meaning of the Constitution by formal demcoratic means, but we can do so by accident, by swelling a national tendency toward or against respecting the feelings of would-be patriarchs.

But, then, those terms are phony.  The phrase is just a way of dressing up the question that was truly decisive in Randolph: WWDSD?