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Scott v. Harris and Driving in the 1930s:
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.
Brasher:
This reminds me of Justice Stevens's dissent in the wine shipment cases two years ago. The dissent was something like "Unlike these other Justices, I remember Prohibition and was living in Chicago when the 21st Amendment repealed it, so I know that Congress intended to give all the power to regulate alchohol to the states." Do you think the frequency of these dissents will increase as Justice Stevens gets older?
4.30.2007 3:59pm
GW law student:
His comment does make sense, but perhaps is emphasis on "generational" factors is misplaced.

If you have ever driven on two-lane country roads in Europe (e.g., Ireland) and you have to pass a lorry while driving in the wrong lane with an oncoming car staring you down, you will know that that type of driving is often more nerve-wracking than driving 75+ on US highways or even suburban 6 lane "streets."

Your emphasis on top speed is a bit misplaced. Remember, a person's perception of speed is relative to context.
4.30.2007 4:06pm
madisonian (mail):
As the first comment notes, this is not the first "generational" argument that Justice Stevens has made. In Granholm v. Heald, he noted that "my understanding (and recollection) of the historical context" surrounding the ratification of the 21st Amendment reinforced his conviction that the Amendment should be broadly construed. The suggestion seemed to be that because the younger justices in the majority weren't around back in the old days, they failed to interpret the constitutional text properly. The striking thing in Granholm, of course, is that the 21st Amendment was ratified in 1933 -- when Justice Stevens was 13 years old. Perhaps even at that tender age he had a preternatural interest in law (or booze), but this "back in my day" style of constitutional reasoning just seems odd and out of place.
4.30.2007 4:09pm
arthur (mail):
Also calls to mind Justice Holmes' reasoning in Baltimore &Ohio R.R. v. Goodman (1927), written when Holmes was 86, that required trucks to "stop look and listen" at rail crossings. An arguably sensible rule in a world with more trains than cars, the world that had disappeared a decade or so before the ruling.
4.30.2007 4:15pm
Bored Lawyer:

this "back in my day" style of constitutional reasoning just seems odd and out of place.


That's being very kind. I can think of harsher adjectives that spring to mind.
4.30.2007 4:17pm
Anon1234:
Justice Stevens also ignores the possibility that the reactions of the drivers of oncoming vehicles (and, thus, the danger they may be placed in by an unlawful high-speed pass over a double yellow) may be quite different than they would have been in the era when "most high-speed driving took place on two-lane roads rather than on super-highways..."
4.30.2007 4:22pm
blackdoggerel (mail):
How about his suggestion in the same footnote that the other Justices must have thought oncoming headlights were actually "bursts of lightning or explosions"?

I really hope he was speaking tongue-in-cheek, as I find it hard to believe that's what the other Justices thought. I'm not sure he was, given that the rest of the footnote seems sincere enough. But even if he was, what an odd mistake to allege, even if humorously. Explosions?
4.30.2007 4:29pm
margate (mail):
Talk about a quirky argument.

Steven's rationale is about as stupid as suggesting that the 9 Justices are the ones best placed to protect fleeing suspects from themselves -- by foreclosing any potential damage claim.

Think about it.

A high-speed chase is just the sort of thing injured people regret later.

And though there's no data on this, I bet there's no bond stronger than the one between a fleeing suspect and, say, a 1970 Cutlass 442.

Well, maybe one bond . . . .
4.30.2007 4:45pm
Hattio (mail):
Hmmm,
I will agree that people who aren't in the habit of driving on a two-lane road that requires passing often overestimate the danger involved in safe passing. But it's a far leap from that the other judges saw explosions (which might have been in jest) or to the notion that this driver's actions weren't dangerous. (Just for the record, I haven't seen the video, but pretty much all the commentators are agreeing the driving in question was dangerous to others).
4.30.2007 4:53pm
CDU (mail):
Your emphasis on top speed is a bit misplaced. Remember, a person's perception of speed is relative to context.

I don't see what perception has to do with it. The severity of an accident increases with the actual speed, not the perceived speed.
4.30.2007 4:59pm
phalkon (mail):
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.

But all things aren't equal here. Considering the great advances in safety in the past 50+ years (brakes, shocks, suspension, seat belts, air bags, road paving and marking), it was probably more dangerous to drive 60 mph in the late 30s than it is to drive 100 mph now.
Of course, other drivers in the 30s were probably more adept at taking evasive action and generally dealing with hazardous conditions. It may have taken a bit more recklessness to endanger them than it would to imperil a soccer mom in a minivan today.
4.30.2007 5:13pm
PersonFromPorlock:
I'm not sure people drove that much more slowly back then. I remember my father (a terrible driver), in the late '40s, defending 45 MPH as being a comfortable speed to drive while traffic zipped around him. The cars may have been slower but the drivers weren't, necessarily.

Granted, that's the '40s and not the '30s, but the cars of the '40s weren't that much faster.
4.30.2007 5:14pm
logicnazi (mail) (www):
Yes, the cars may have gone slower in the 30s but the cars themselves were also not as well made. It's not clear to me that the likelihood of a serious accident is any higher in a modern car with better shocks, tires and weight distribution going at 100mph as an ancient car going 60. In fact it would not surprise me if it was safer to be in the modern car going 100mph.

A similar argument applies to the effect of modern safety devices (crumple zones and the like) on the actual risk of death. However, I'm not even sure if this is legally relevant. The legal standard is presumably something about substantive risk or the like not expected number of casualties.
4.30.2007 5:27pm
Mr. Stoopid:
What I think is more persuasive in Stevens' dissent is the idea that the Court is the wrong body to make what is essentially a factual inquiry. Remember that in the oral argument, Scalia referred to the chase as the scariest he had seen since the French Connection. Which makes sense if he had not seen any since the French Connection. To me it looked pretty tame as police chases go. Which is the point--people can view the danger shown by a dashboard-cam differently. So the people in the best position to make an informed call on the danger question are people of varying ages and experiences who live in (or at least near) the area in question. We call them "the jury." It just doesn't seem to me that there was a need to lay down a blanket rule on high speed chases here.
4.30.2007 5:38pm
RMCACE (mail):
I think Stevens is trying to compare the majority to Baltimore &Ohio Railroad Co. v. Goodman, 275 U.S. 66 (1927). In a Holmes classic, he says in order to recover for being struck by a train, a driver must stop, get out, and look around at a RR crossing. Holmes didn't drive and was very old at the time.

Of course, Stevens is way off here, but I think this was his goal.
4.30.2007 5:38pm
Mike Rentner (mail) (www):
I think it's also absurd to claim that drivers today aren't familiar with country roads. We might have more superhighways than before, but there are still plenty of country roads. The evidence is the fact that this video took place on those very kinds of roads.

I think the real issue is that it is Stevens who is out of touch with the real world, he's been isolated in DC too long. At 87 years old, it's about time for him to retire.
4.30.2007 5:50pm
Alice Ristroph:
The post doesn't make this clear, but the footnote in question follows a quotation of the majority opinion's claim that the videotaped car chase "resembles a Hollywood-style car chase of the most frightening sort." I watched the video, and the only thing Hollywood-esque I saw was the crash at the end. I see this footnote as an effort to understand why the majority would make such a seemingly implausible claim. If Stevens's explanation is a stretch, that may have more to do with the implausibility of the claim to which he is responding than with old-geezer legal reasoning.
4.30.2007 5:52pm
r78:
If we are going to have supreme court justices sitting around watching video evidence, they shouldn't be such wussies about it.

"of the most frightening sort" - my, have you ever before read such a fey statement?
4.30.2007 5:59pm
Duffy Pratt (mail):
Mike:

I think Stevens point may be that the entire Court is out of touch with the real world, and not in the best position to be drawing necessary conclusions from this video.
4.30.2007 6:08pm
DeezRightWingNutz:
Mike,

I beg to differ about people's familiarity (or at least their comfort) with passing on country roads. When I ride with people on 55 mph 2 lane rural roads, they often think they need 10+ times the required distance to pass, don't understand the advantage of downshifting, etc.

I also find it comical when a local news outlet will have a headline such as those after the Corzine accident...

"Corzine's car clocked at 91 MPH!!!! before crash"

I don't know the particulars of the Corzine case, but there are many cases in which I'd feel comfortable traveling at over 150% of that speed on a restricted access highway.

Finally, I don't think Steven's said that the other justices mistook the headlights for explosions, just that they looked like explosions and/or lighting, and therefore scary and dangerous to the uninitiated.
4.30.2007 6:21pm
Spartacus (www):
It's not clear to me that the likelihood of a serious accident is any higher in a modern car with better shocks, tires and weight distribution going at 100mph as an ancient car going 60.

All the airbags in the world aren't as good protection as one of those old tanks.

Stevens is the latest case of judcial decrepitude: see
this blurb.
4.30.2007 6:51pm
whit:
spartacus, quite frequently - one of the largest mechanisms of injury is not the initial collision (car strikes object), or even secondary collision part of body strikes interior of car. it's the tertiary thang (inside piece of body strikes cavity, etc.)

those aren;t helped very much by big tanklike vehicles.

your (insert organ here) slamming into (insert body cavity here) with rapid deceleration is just as devastating

just something to consider
4.30.2007 9:12pm
Jay:
"I also find it comical when a local news outlet will have a headline such as those after the Corzine accident...

"Corzine's car clocked at 91 MPH!!!! before crash"

I don't know the particulars of the Corzine case, but there are many cases in which I'd feel comfortable traveling at over 150% of that speed on a restricted access highway."

So how often do you travel 135 mph on the interstate? Do you still have a driver's license?
4.30.2007 9:38pm
Milhouse (www):
"And we walked twenty miles to the schoolhouse..."
4.30.2007 10:37pm
elChato (mail):
Perhaps he only meant to say that each driver has the right to define his own concept of speed, of distance, of headlights, and of the mystery of running from the cops.
4.30.2007 10:42pm
A. Zarkov (mail):
I learned to drive in New York City under the elevated subway train. You have to watch for on coming traffic, pedestrians darting out suddenly from behind a pillar, parked cars starting up suddenly, bicycles, delivery trucks, kids running after balls etc. Oh yes the lighting can change suddenly and well as flutter. You can get some idea by watching the classic chase scene in the movie, The French Connection. Most of my early driving was on the West Side Highway, designed and built for 1920s traffic, and the East Side Drive. But I also spent plenty of time driving routes 1, 4, 46, 23, and 9 in New Jersey. And lets not leave out one of greatest driving experience in world, the famed Pulaski Skyway. Where else will you find an exit from center lane that appears as a sudden down ramp? I might add that in those days the metal work was rusted through and there were holes in the roadbed so large you could look down at the Passaic River. I also drove a lot in Upstate New York on two lane black tops.

Watching the video I quite agree with the SCOTUS majority that the high-speed chase did indeed put the public at risk, and I must conclude Justice Stevens is a complete schmuck. Now tell me, would anybody like to be a passenger while he was behind the wheel?
4.30.2007 10:59pm
DeezRightWingNutz:

So how often do you travel 135 mph on the interstate? Do you still have a driver's license?


Not very often at all, probably only a few times in my life. If it weren't for the threat of prosection, I might do so more often, but only on empty roads in well-maintained car when the weather is good. It is my understanding that these speeds, while not the norm, aren't uncommon on stretches of the Autobahn. The only thing that makes me somewhat reluctant to go that fast is the risk of wild animals or blow outs.
5.1.2007 12:12am
Brian G (mail) (www):
Maybe Justice Stevens can elaborate on how well Lochner helped the working man back when he was in high school in a future opinion.
5.1.2007 12:14am
turkey (mail):
I think Judge Stevens is way off in his suggestion. I think it's ludacris to think that drivers today aren't familiar with country roads or any roads for that matter. Judge Stevens is living in another world and they shouldn't be drawing any kinds of conclusions from this court. They all seem to be out of place. I agree with the first and third comments when they stated that this is not the first generational argument that Justice Stevens has made. He has a "back in my day" sort of style that's out of place and doesn't seem to provide justice. This case also reminds me of the Granholm v. Heald case, Justice Stevens states that I can remember when the 21st amendment was ratified and as the first comment stated that Justice Stevens knew that Congress intended to give all the power to regulate alchohol to the states. he suggested that since these kids weren't around back in the old days then they could have failed to interpret the constitution. As far as the high speeding is concerned, Justice Stevens seems to think that high speeds are 50 mph. He needs to get his mind in the real world and out of his fantasy world.
5.1.2007 2:21am
Bill Poser (mail) (www):
It is possible vehicles are safer at higher speeds now than they were when Justice Stevens was a young man, but it is highly unlikely that the reaction times of drivers are shorter or their attentiveness higher. At high speeds there isn't time to react to what other vehicles do, to changes in the road surface, to obstructions, to animals crossing the road, and so forth.

As for lack of familiarity with driving on undivided highways, this is really true for some people. Some years ago I was at a summer school in New Mexico and one Saturday took one of the students with me to Canyon de Chelly. We took the Interstate into Arizona and then turned off onto the undivided highway up to Window Rock. After a bit the student went nuts, yelling and pointing ahead of us. What had upset her was a vehicle coming toward us in our lane, far in the distance. She was flabbergasted when I explained how passing works on undivided highways, of which she had no experience. She was from the suburbs of Philadelphia and attending Bryn Mawr. Her experience of driving was city and suburban roads and divided highways.(On our next trip, to Chaco Canyon, I discovered that she had never been on an unpaved road.)
5.1.2007 4:29am
curious:

I think it's ludacris to think that drivers today aren't familiar with country roads or any roads for that matter.



Turkey:

Ludicrous

Ludacris

By chance, were you relying on his opinion due to his experience on 2 Fast 2 Furious? ;)
5.1.2007 11:15am