JUDGING CRIMES

Ten years ago, Justice Scalia wrote that "this Court's Constitution-making process can be called 'reasoned adjudication' only in the most formalistic sense."  Now, that's a pretty extraordinary thing for any judge to say about his own court.  What if he's right?  Isn't that something we ought to be concerned about?

In Georgia v. Randolph, the recent Supreme Court decision holding that the Constitution forbids wives from inviting police officers into their homes if the man of the house objects (see post 91), Justice Souter said the issue before the Court was "the reasonableness of police entry in reliance on consent by one occupant subject to immediate challenge by another". 

Now, "reasonable" isn't exactly a high standard.  It means only:

1. Capable of reasoning; rational: a reasonable person. 2. Governed by or being in accordance with reason or sound thinking: a reasonable solution to the problem. 3. Being within the bounds of common sense: arrive home at a reasonable hour.

Justice Souter had the benefit of decisions from four federal Courts of Appeals.  Panels of three judges from each of the courts had considered exactly the same legal issue over the course of nearly 30 years.   All four courts reached the same conclusion.  All four decisions were unanimous, meaning that 12 federal judges agreed that it was reasonable for police to enter a home when invited to do so by one of the owners. 

But they were all wrong, Souter declared.  In his view, the police officers who accepted Mrs.  Randolph's invitation were incapable of reasoning, or were irrational, or were not governed by reason or sound thinking, or maybe weren't even capable of remaining within the bounds of common sense.  That's scary enough.    I mean, we give these guys guns and immunity from most tort actions and it turns out they're crackers in more senses than one. 

But then, who would have guessed that when twelve federal judges, chosen at random, are given the task of distinguishing rational from irrational behavior, all twelve should prove themselves  inadequate to the task?    Shouldn't we worry that maybe Justice Souter is right, and that our federal bench is filled with people incapable of making even the most basic of all intellectual distinctions, that between rationality and irrationality?

Or should we instead be thinking through the implications of our Supreme Court issuing opinions in a secret language, using common English words to signify things quite different from those words' dictionary meanings - and doing so, moreover, under the pretense that the Framers (whoever they were) spoke and wrote in the same made-up language?  Should we, in fact, be taking Justice Scalia's phrase - "this Court's Constitution-making process" - seriously?