Over the mocking concurrence of Justice Antonin Scalia, the Supreme Court last month extended constitutional protection to police officers who engage in high-speed chases. The court's decision made sense as a practical matter, but it plainly caused discomfiture on the bench.
The facts of the case were never in dispute. On an evening in May 1990 in Sacramento County, Calif., Deputy Sheriff James Everett Smith attempted to stop a motorcycle being driven by Brian Willard, 18. His passenger was 16-year-old Philip Lewis.When Willard failed to stop, Smith and a fellow deputy gave hot pursuit. The 75-second chase ended when Willard failed to make a sharp left turn. Lewis was thrown free. The pursuing patrol car skidded into the youth. He died at the scene.
Lewis' parents brought suit. They won in the lower courts, but on May 26 the Supremes reached a unanimous conclusion: The deputies had not violated young Lewis' constitutional rights. They had not deprived him of life without "due process of law."
Justice David Souter spoke for the high court, but the court's voice suffered from laryngitis. There were five concurring opinions. Souter held that the correct test of due process is whether the state's conduct "shocks the conscience." In the case at hand, his own conscience was not shocked. Souter explained:
"Willard's outrageous behavior was practically instantaneous, and so was Smith's instinctive response."
Chief Justice William Rehnquist laconically concurred. He agreed that "shocks the conscience," rather than "deliberate indifference" or "reckless disregard," is indeed the right test.
Justice Anthony Kennedy, joined by Justice Sandra Day O'Connor, said the shock-the-conscience test "must be viewed with considerable skepticism." The phrase "has the unfortunate connotation of a standard laden with subjective assessments." Even so, in circumstances such as these, the judicial conscience will not be shocked if "police conduct a dangerous chase of a suspect who disobeys a lawful command to stop when they determine it is appropriate to do so."
Justices Stephen Breyer and John Paul Stevens filed fussy concurring opinions of no particular moment. It remained for the irrepressible Scalia, concurring only in the judgment, to poke a sardonic stick in his colleagues' inconsistent eye.
It was just a year ago, he reminded them, that they had rejected the very reasoning that they now adopted. Then the court had spoken grandly of relying upon "our nation's history, legal traditions and practices" to direct and restrain their exposition of the due process clause. Now they had resorted to the highly subjective test of "shocks the conscience."
"Today's opinion resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Ghandi, the Cellophane of subjectivity, th' ol' `shocks the conscience' test." (Scalia explained in a footnote, "for those unfamiliar with classical music," that he had taken his exemplars of excellence from Cole Porter's 1934 "You're the Top.")
The test that triggered Scalia's derision dates from a case in 1952 involving behavior by a government officer that was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Scalia scorned the notion. Rather than ask "whether the police conduct here at issue shocks my unelected conscience, I would ask whether our nation has traditionally protected the right that (Lewis' parents) assert."
The states are free, said Scalia, to enact laws governing tort liability in cases of police pursuit, but for judges to overrule such democratically adopted acts on the ground that they shock their consciences "is not judicial review but judicial governance."
My own view, often expressed, is that we live by a curious Constitution. Its chains are forged of rubber bands. We leave it to judges to decide what speech is "free," what searches are "reasonable," what laws are "appropriate." In the Sacramento case, the high court has told us what conduct is "due." Like Scalia, I would concur in the justices' decision, but not in the evanescent path that led them there.