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November 4, 2003

I was well into adulthood

Daniel Radosh

I was well into adulthood before I ever read any coverage of the Supreme Court that wasn't written by Linda Greenhouse, so I was always under the impression that the Court was inherently boring. Dahlia Lithwick changed my mind with reporting like this:

What if the drugs had been found closer to the driver, rather than in the back seat, asks Sandra Day O'Connor. Could all three passengers still be arrested? Yes, says Bair, because the car is a common area. What if the drugs were found in the trunk, asks Ruth Bader Ginsburg. Well, says Bair, if there were a "large quantity of drugs in the trunk, or a dead body in the trunk ... "; Ginsburg reminds him that this is her hypo and there is just a Ziploc bag in the trunk, not a dead body.

Then it's O'Connor's turn with the innocent-grandma hypo: "What if it's a high-crime area and some mother gets a ride from her son and doesn't know he's involved with drugs?" Can she be arrested? "Supposing it's the middle of the day," she adds. "And she's going to the grocery store?" Bair can't quite make himself say "Lock the old drug-mom up." So he mumbles something about a "totality of the circumstances test."

Justice John Paul Stevens has a hypo, too. What if there were four passengers in the car instead of three? No different says Bair. "What if there were six?" asks Stevens. Same. Stevens, undaunted: "What if it's a minivan and there are eight people?" he asks. Lock 'em up. Stevens takes a breather while Ginsburg takes over: "What if it had been a bus?"

Bair seems ready to concede that he would not seek to arrest all the passengers on a bus just because someone had drugs. Prompting Antonin Scalia to enter the bidding war to ask if the result would be different if it were a public bus or a charter bus. He appears to be asking this question purely for recreational purposes.

Anthony Kennedy wonders whether the police, upon finding a dead body and two possible killers, each claiming the other did it, could arrest them both. Bair, who couldn't get Ginsburg on board with his dead body in the trunk hypo, appears relieved that the corpses are back. He says both potential killers could be subject to arrest.

Stevens then notes that there are three suspects here—not two. So it's not as if there's a 50 percent chance that one guy is the criminal. There's only a 33.3 percent chance. Can a mere 33.3 percent likelihood of criminality constitute probable cause? Bair insists you cannot quantify probable cause. Stevens is unperturbed. So what if there are four people and each is only 25 percent likely to be the criminal?

And what if there were 300 people on a 747 and one of them was purple?

It's a long morning.

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