WRITING in April for a unanimous Supreme Court, Chief Justice John G. Roberts Jr. found that the police in Brigham City, Utah, acted properly in entering a home without a warrant after they peered through a window and saw a fight in progress that had left one man spitting blood.There is a hot link in that passage, but it's for "University of Wisconsin" and it just goes to a page of hits for a search within the NYT site for "University of Wisconsin." How about a link to the post? Come on, Times! You've got to do internet properly. It's not Greenhouse's fault, but really, that approach to links is unbelievably obtuse.
"The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties," the chief justice said, rejecting the argument that the police should have waited until the altercation ended more conclusively. "An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," he explained.
The chief justice's sports imagery galvanized the legal blogs. Some found his boxing reference inapt. "The whole point of boxing is fighting!" wrote a participant on the Althouse blog, run by Ann Althouse, a law professor at the University of Wisconsin.
Others took issue with the hockey reference. "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler," one said.
Finally, another writer took a step back and observed that "this shows another side of Roberts as a good writer: displaying some wry humor and hipness."
Here's the missing link. I started off the conversation this way:
We're familiar with the way a referee in a boxing can stop a fight if it becomes too one-sided. Why throw in "(or hockey)"? It not only clutters the sentence, it makes the concept harder to grasp. I don't even know about hockey referees stopping one-sided games. Since Roberts is known for the high quality of his writing style, I've got to think that parenthetical really adds something. But what?The quote "The whole point of boxing is fighting!" is not mine. It's by what Greenhouse called "a participant on the Althouse blog, run by Ann Althouse." In other words, a commenter. Actually, it's Joan H. -- here's her blog .
Is it that in hockey fights break out, and the refs don't stop them unless they're one-sided, and it's actually more like the police situation because the fighting isn't legitimate in the first place, but some people might think the police should ignore fights unless someone is outmatched? In that case, hockey is a more apt analogy in light of the argument that the search was unreasonable.
Fighting is tolerated in the NHL, and referees often let the players involved work out their frustrations as long as neither party is getting beaten to a pulp and the other team members are staying out of the fray. Most fights are just scuffles, and are to be expected in a game in which shoving your opponents out of the way is legitimate.The second quote -- "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler" -- is by Dave Friedman. The "wry humor and hipness" one is from paulfrommpls. Here's his blog.
I think the hockey analogy is better just for that reason, and can't understand why boxing was included at all. The whole point of boxing is the fighting! In hockey, fighting is always penalized, whether or not the refs break it up, just as it should be in life. I think Roberts included the boxing reference because frankly there aren't so many hockey fans around these days.
Greenhouse ends the opening passage to her article -- the part I've quoted -- with:
It is no surprise that the new chief justice's every vote is being tabulated and scrutinized. But so is his every metaphor.Well, the attention to the metaphor is partly in the nature of blogging. It was a nice specific, textual thing to talk about. I love when something like that pops out in a Supreme Court case (or somewhere else in the news). It's one of those things that says bloggable to me. Indeed, I'm scrutinizing the writing in the NYT right now because it said bloggable to me... which it would have said even without calling my name (which gets my attention big time).
The NYT piece isn't about blogging phenomena, though. It's about judging John Roberts. The part about our little boxing/hockey conversation is followed by some quotes about Roberts' writing by usual suspect quotemeisters Erwin Chemerinsky (Roberts' "prose style is clear and easy to follow") and Akhil Amar (praising the "elegance and economy" and "occasionally snappy line"). This leads to a discussion about whether Roberts is really a judicial "minimalist." No overarching conclusions there.
The piece rolls toward a conclusion with the observation that Roberts doesn't much like quoting law review articles (a quality shared by most judges, I'd say). Here, the key quote is from Harvard lawprof David Barron: "It's as if the answers to all questions are already there, completely internal to the court, to be teased out of the existing cases."
Relying on precedent as the only source of law is an approach with strengths and weaknesses, Professor Barron said, noting that on the one hand, precedent can be a smokescreen, "a rhetorical device to hide the inevitable policy making," while on the other, "it has its own constraining effects," making a judge less likely to embrace dramatic change in the status quo.True enough, but it's an observation that you can make about nearly any judge. This rhetoric about rhetorical devices is the stock in trade of the law professor...
...including the lawprof blogger. So bring on the judicial metaphors and rhetoric... I need bloggables.
Oh, but the term is over. No new material! We'll have to go back over the old. In fact, I'm running a series of seminars over the rest of the summer here at the law school in which we hash over one case each Tuesday. I'm taking over the first slot, which I'd previously given to someone else, who has an out-of-town opportunity to pursue. I'm the emergency fill-in. I'll be doing the hallucinogenic tea case, which happens to be the first case Akhil Amar talks about in illustrating Roberts' penchant for the "occasionally snappy line":
[Amar point to] a majority opinion that rejected the government's application of federal narcotics law to stop a Brazil-based religious group from importing a hallucinogenic tea for use in its rituals. "The government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions," the chief justice wrote.Ah, good place to end a rambling blog post about hipness! We've got your hallucinogenic drugs and that hippie irritation with the government and all its rules, man.