Radley Balko and the inexperience of the Justices when it comes to criminal law

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”

My guess is that brother Balko and I agree on very little. But that is not true for Mr. Balko’s The Supreme Court’s massive blind spot, Washington Post (January 22, 2015).

Mr. Balko asserts:

This term, the Supreme Court heard two cases involving the actions of police officers during traffic stops. How the court comes down on the two cases will likely have significant repercussions far beyond the facts of the cases themselves. The court’s decisions could affect how police target motorists, which motorists they target and how often, and how they interact with motorists once they’ve pulled them over. The decisions will likely affect how police profile motorists to look for drug couriers, who gets detained and searched, and who has property confiscated through civil asset forfeiture.

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court.

(Emphasis added)

Mr. Balko is correct. And that is a big problem no matter your view about how criminal law cases should be resolved (or even taken up) by the Justices. There is a real world out there where cops interact with citizens. The Justices have no clue about how that world actually functions.


*Balko adds: “(*This post doesn’t look into that case [Rodriguez v. United States] specifically, but to see how the theme of the post applies to it, see this analysis by New York criminal defense attorney Scott Greenfield.) As frequent readers of this blog know, Rodriguez comes from the District of Nebraska.  As Scott noted, “But then an independent, intervening naked mud-wrestling match broke out, and being quite a fan, I sat on the sidelines, munching popcorn, watching intently.  In the comments to my post, Judge Richard Kopf and Lawprof Orin Kerr squared off.  It was a fascinating, and revealing, discussion.”


7 responses

  1. Judge, you might want to edit the title of this post. Otherwise there will be a Bradley Balko somewhere out there who is very confused when he googles himself, and a Radley Balko who is not sure if he’s getting a tummy rub or a backhanded compliment by someone who can’t remember his name.

  2. While walking last night I came across a traffic stop due to a burned out front headlight. Two Omaha policemen in two separate cars worked the matter. One questioned the driver while the other used his flashlight to peer into the back seat.

    I resisted the urge to volunteer and tell the driver not to allow a dog sniff. I did think that ever stop has the possibility of violence and even a gun battle. Multiple shooting deaths in Omaha last weekend, but none were police.

  3. RGH,

    With all due respect, I don’t believe you should be criticizing the Court for making factual assumptions that have no basis in reality.

    Without any fact-checking, you alleged that the trial prosecutor in Baca v. Adams of knowingly presenting perjured testimony. You repeated this serious allegation without reading any portion of the record.

    If you had taken the time to read the record — at least the 113 page transcript of the evidentiary hearing & the magistrate’s R&R — you would have learned that there is no evidence whatsoever supporting the scurrilous accusation that you irresponsibly published.

    Yes, everyone should get their facts straight, and everyone’s factual assumptions should have a basis in reality, before one relies on them to draft an appellate opinion or, in your case, to accuse someone of wrongdoing.

    All the best,


  4. So let’s broaden the analysis.;..it’s not just the criminal law the justices have no real world experience in….there are lots of other areas of law. The fundamental problem is that (a) nominees for SCOTUS come from a narrow pool of candidates that at the present time come from only two elite universities and (b) the lawyers that practice before them are also a limited and elite lot and (c) the justices like it that way.


    There is a lot of intellectual tripe written about a “marketplace of ideas” and how (fake frumpy face) that marketplace can never account for every possible idea. Ok. Maybe that’s theoretically true. So what does it take to get anyone to admit that this so-called marketplace is actually being undermined by the self-preening intellectual incest that marks the court?

  5. According to a new report from the National Registry of Exonerations, more people in the United States were released from prison after wrongful convictions than any year in recorded history” (BitterSweet).

    Yay … Boo …

  6. I’m less concerned by the law school (in some countries, every trial lawyer has to go through the same post-grad program to get licensed) and more concerned about the experiences once the future Justices become lawyers. If you look at the bios of the current nine, you will see a lot of experience in serving on staff of executive/legislative agencies, in academia, and in appeals (either as lawyers or judges) but very little experience at the trial level (with some exceptions). When you’ve never tried a case and never had to explain the “rules” to a police officer or individual client or small business person, it is easy to get lost in theory and miss the practical impact of the rules/tests that you devise in your opinion.

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