Supreme Court justices reveal profound ignorance of ask important questions about text messaging and email

Here's another example showing that the more important and powerful you are, the less likely you are to use email, text messaging, instant messaging, or other forms of electronic communication (other than the phone).

From oral arguments in the US Supreme Court case City of Ontario v. Quon:

UPDATE: BB commentor SeppTB says: "Read in context, the 'email vs pager' comment is a worthy question to ask."

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy. “Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Technical difficulties at the Supreme Court


  1. These facts are scary. It’s one thing for my Dad to not understand texts, email etc. It’s another for the men interpreting our laws. God, have mercy.

  2. Yes unfortunately a JD degree just doesn’t qualify one to be a geek now does it? Particularly one earned 40 years ago.

  3. My reaction to this is the same as when a US congressman wondered of Guam would capsize if too many Marines were stationed there….”We are doomed.”

    1. I am pretty sure the congressman meant that to be a joke, I do admit though, it wasn’t funny.

  4. Attorneys and justices can, in general, ask questions in such a linguistically pointed manner that the question itself comes off as stupid to the general public.

    Be cautious when portraying the “profound ignorance” of the Supreme Court justices as ignorance. It is possible, and even likely, that the ignorance of the public’s inability to understand legal linguistics is more of a factor at play.

    1. I disagree. If people in the legal system cannot construct sentences that reflect the current language of the land, and instead make statements that are “linguistically pointed manner that the question itself comes off as stupid to the general public.” Then they deserve to be ridiculed publicly.

    2. i love asking “simple” questions that assume nearly total ignorance. that’s the best way to find out if the person answering knows enough basic foundational information to then go on blabbering about their idea of the best solution for healthcare reform, economic stabilization, where to go for dinner, etc.

      In fact, it’s my preferred way of quickly getting up to speed on a topic that i’m not an expert on.

  5. I admit that my first reaction to this story was that these questions showed a shocking lack of understanding on the part of the justices. But it must also be said that there is very little context to the report, and in other proceedings that I have listened to from SCOTUS the justices often ask questions that seem uninformed or antagonistic in order to probe the understanding of those presenting the arguments. Not saying that is what is going on here, but without context, this just seems like lazy reporting.

    1. Exatly my thinking. They are getting the definition into the record. Establishing precident. And yes the problem is, are they getting informed and unbiased answers to those questions.

    2. I agree.

      Let’s assume these people are not idiots. Maybe there are reasons for asking the questions. The case deals with expectation of privacy with regard to texts sent to pagers. Asking someone to explain the difference between email and pager could be crucial. If a compelling difference in the expectation of privacy con be made between the two mediums, then precedent from email would not apply. If there is not a difference, then precedent would apply.

      Same with understanding a service provider. If a message is passed through another entity, that might impact the privacy expectations of the communication.

      It is easy to look at this and say “OMG they are teh dumb lol.” But remember, the questions they ask are designed to elicit answers that become precedent for years to come. They need to ask questions to get people to explain things so that they can interpret the laws as they apply to new forms of communication. Remember: YANASCJ (you are not a supreme court judge). They are.

      1. Indeed, I was under the impression that this is common in high courts (in other countries too) to establish a chain of precedence.

        Similarities between technologies that are “obvious” and assumed mean nothing legally speaking, they have to be in the legal record.

  6. I don’t think it’s terrible that they don’t know; they’re of a generation that didn’t grow up with that sort of thing. At least they’re admitting that they don’t know, and are looking for clarification.

    I do find it a little disconcerting, though, that the lawyer arguing the case doesn’t know for certain.

  7. These may be important fine legal distinctions. “…what the difference was ‘between email and a pager?'” is perhaps asking how two very similar text transmission technologies differ relative to possible exiting precedent for one of them. And again, the “… if a text message was sent to an officer at the same time he was sending one to someone else.” is probably not a question asking how the packets are routed but rather how having two recipients in a “broadcast” effects the messages legal status.

  8. Seems to me the ignorance here lies with bloggers, not with judges. For one thing, cases are decided on the basis of facts before the court, not what the judges thing they know from their own experience. Secondly, Scalia’s question about whether the message goes directly from pager to pager or is stored and forwarded by a third party cuts directly to the meat of the question of expectation of privacy. In fact some pager networks are peer-to-peer, or can be. And there is a difference between email and SMS, in that email servers are usually owned and controlled by companies and agencies themselves, while SMS traffic is always routed via the wireless service provider.

    I learned 10 times as much from the insightful commenters on the WSJ Law Blog as I did from reading the blog itself.

    1. jwb is right on. Anyone looking for more context can read the transcript freely available on The Justice’s questions are completely appropriate in the context of the legal questions presented.

  9. Hmmm….would not be surprised at all if Roberts’ question meant, “Should email be treated any differently than a pager?” Hard to tell, with no context. But he’s younger and I suspect he knows exactly what the difference is.

  10. The fact that SCOTUS is clueless is not exactly news. In fact, the overwhelming majority of the US government is clueless.

  11. I work with lawyers quite a bit, and this questioning is not uncommon, it’s not that they don’t know, or could guess, it’s that they are not allowed to guess as to the facts.

    The Justices job is to collect the fact situation as provided to them by the parties in the case, they often phrase the questions to make the facts line up with legal tests to help render the decision.

    But if they supplant the actual facts, with their understanding of them devoid of 3rd party input, it could place into question the entire decision, so they devoid themselves of the responsibility of understanding something by asking overly simple questions of “experts”.

    It appears silly to someone when they are an “expert” in that technology, but if you review a similar line of questioning with a technology you don’t understand – you’ll find yourself asking similar questions.

  12. Did they ask the difference between a pack of cigarettes and a pager, too? They are about the same size..

    1. Geez, Mark, are they smoking little teeny tiny cigarettes where you come from? Or are you so out of touch, technologically and socially, that you don’t know a pack of Wides is at least three times the size of a pager?

      I’m just kidding you, my friend. Keep blogging!

    2. “Did they ask the difference between a pack of cigarettes and a pager, too? They are about the same size.”

      Cute, but there’s a distinction made in the law (or was) between intercepting cell phone communications and portable phone transmissions, so that kind of fine slice-n-dice is pretty much par for the course.

  13. Many good points above. In any case, we can be pretty sure that the first draft of the opinion will be written by a recent Ivy League law school graduate lucky enough to have landed a US Supreme Court clerkship. No doubt that clerk texted all her friends with the good news when she first got the gig.

    With that said, a lot of legal analysis goes along the line of asking: what is the difference between sending a defamatory postcard and publishing a defamatory article as news in a traditional newspaper? How is either different from or the same as insulting someone in private conversation? If you answer, “Jeez, man, one’s a card you send in the mail, another is a fucking dead-tree newspaper, and the other’s just talking!”, you’ve missed the point.

  14. A few years ago, it was common to hear that the invention of the Web was a lot like the invention of the Gutenberg printing press. What kind of a moron would say that? Obviously, the Gutenberg press involves sticking big pieces of parchment into a big metal thing stained with ink, and the web was something you “surfed” on a computer.

  15. I’m sorry but this meme needs to be killed at once, because it’s dead wrong. I’m no fan of Roberts, but in full context, his question makes absolute sense, and is actually an astute rhetorical question. A commenter over Gizmodo dug up the context:

    Roberts is making the point that, from a legal perspective, there is no difference between a pager and email with respect to auditing and the expectation of privacy. He not only understands the technology, but he understands it well enough to make a nuanced point about how the law should treat the two.

    1. Exactly, @s5. Mark, recirculating this story is lazy & sensational. I can’t believe that every one is putting quotes around the Roberts line, when it’s blatantly different from what he said. He didn’t ask what’s the difference between “email and A pager”. He asked about “THE pager and THE email”. It matters, because it clearly shows that the question was about the specific relevant policies of this specific police department, not about the technologies in general.

  16. Read in context, the “email vs pager” comment is a worthy question to ask.

    JUSTICE GINSBURG: But my question is, an employee reads this policy and says, oh, my e-mails are going to be subject to being monitored –

    MR. DAMMEIER: Sure.

    JUSTICE GINSBURG: Wouldn’t that employee expect that the policy would carry over to pagers? When you think of what’s the reason why they want to look at the e-mails, wouldn’t the same reason apply?

    CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?

    MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city’s computer, it goes through the city’s server, it goes through all the equipment that — that has — that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.

    CHIEF JUSTICE ROBERTS: You can do that with e-mails.

  17. Obama needs to nominate a geek for the Supremes. Or at least someone somewhat tech-savvy…

    With all the weighty tech-oriented decisions that will surely happen in the next decade or two, we need someone who has at least touched the technology…

  18. I was suspicious, and now that I’ve read the context, I’m on the side of the justices: their questions are appropriate.

    The bloggers who are mocking them are no different from Sarah Palin when she mocked the value of “fruit fly research in Paris, France” – an ignorant person relying on the ignorance of others to win an argument.

    1. The bloggers who are mocking them are no different from Sarah Palin

      Oh really? “the bloggers”? You mean, Mark Frauenfelder?

      No different? Show me Sarah Palin’s corrections she issues? You must have some links, yes?

      Here’s a link for you:

      See Mark’s UPDATE (in red and all caps).

      Ah, if the world was so simple that Sarah Palin was no different than Mark Frauenfelder and for that matter democrats were all the same as republicans, etc.

      What a strange (but maybe easier to understand?) world it would be, I suppose.

  19. Wow, I’m a bit stunned at some answers here. First of all, excusing the right wing extremist CHIEF Justice Roberts ignorance is scary. This is a very young man. He is younger than myself. To question the difference between email and a pager (and they are NOT in any way the same thing), is frightening. These men are setting precedent decisions to be set in history.

    Email and paging are nothing alike. NOTHING. Aside from that look how look pagers have been around. This guy worked in a law ofc not that long ago. Are you going to tell me he wasn’t equipped with, and used email?

    Our country is doomed.

    1. @anon #31:

      To say that pagers and email are NOTHING alike is just sloppy thinking. They are both communication tools, but the differences between them is the point of the Justice’s questioning. He’s establishing with rigorous clarity what the distinctions are.

      Pagers and email are in some ways alike. Pagers and sardines are nothing alike.

  20. Even if this was a case of the Justices not getting it, is this really that unexpected a problem? Let’s imagine the case is now medical in nature… should a supreme court justice be mocked for asking to clarify the differences between a viral infection and a bacterial one? Or how about a case about engineering in a building collapse… do we expect them to have a grasp of Statics?

  21. If the Supremes were to allow cameras in the Court then maybe they wouldnt get egregiously misquoted.
    Something to think about Mr. Chief Justice.

  22. The pager vs. e-mail question is actually very important. There was a recent case where it was determined that e-mail has no expectation of privacy because it is read by a 3rd party (service provider email server). If text messages are read by a service provider server, they would be under the same no-privacy umbrella.

    Kennedy’s question about a busy message is still pretty bad though.

  23. Full transcript at

    The quotes are all out of context as far as I can tell. Put back into context, they make sense. The Roberts remark refers to the difference in legal status of e-mail and pager messages. The Kennedy remark was ironic: he was concerned that the non-work messages involved were interfering with work messages. The Scalia remark was underscoring the existence of a service provider.

    This is a smear.


    1. This is a smear.

      Go home and wash out your beaver, refresh your browser, or whatever you need to do to get that gunk out of your eyes. This isn’t a smear campaign, it was a mistake.

      See Mark’s UPDATE (in red and all caps).

  24. You guys are all clueless.

    First, the briefs for the court all inadequately described the technologies in the case.

    Second, Roberts was NOT asking a rhetorical question, nor was he trying to sharpen the legal analysis. He was asking about the difference between the technologies, not specifically as it relates to the policy in question.

    Third, when Scalia said, “You mean (the text) doesn’t go right to me?” he was most likely being sarcastic; he was poking fun at Roberts. (I’ve heard this from people who were there, and if you read the transcript, it makes sense.)

    Fourth, a more troubling part of the transcript is this:
    “CHIEF JUSTICE ROBERTS: Do any of these other people know about Arch Wireless? Don’t they just assume that once they send something to Quon, it’s going to Quon?
    MR. DAMMEIER: That’s — that is true. I mean, they expect –
    CHIEF JUSTICE ROBERTS: Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.
    MR. DAMMEIER: Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And –
    CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.”

    Fifth, they haven’t handed down any opinions — they haven’t even decided on how they’re going to vote (with the exception of Justice Thomas, of course!) So it’s not really that big of a deal if they haven’t figured out the technology yet — they are going to have many more discussions with their law clerks, they are going to have a conference between the Justices, and then they are going to draft and exchange opinions. If they were to ultimately make a decision on the basis of factual misunderstandings about the technology, then that, of course, would be a problem.

    Sixth, the Court messes up the facts quite often during oral arguments — in fact, the same day as City of Ontario v. Quon was argued, the Court was hearing arguments for Christian Legal Society v. Martinez and they were similarly confused about the facts. At about 5 minutes remaining in the one of the lawyer’s time, and Justice Sotomayor tells him that she is confused about the factual record.

    1. You guys are all clueless.

      Oh, the irony. You seem a little clueless……….

      Once again, for the clueless…. See Mark’s UPDATE(in red and all caps).

      Maybe they DO need the blink tag for boing boing?

  25. CHIEF JUSTICE OF THE INTERNET PANTALONES: Maybe–maybe everyone else knows this, but what is the difference between teh Sarah Palin and teh Mark Frauenfelder?

  26. “The Roberts remark refers to the difference in legal status of e-mail and pager messages.”

    This isn’t correct.
    “CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.”

  27. The Chief Justice’s questions were neither rhetorical nor were they particularly helpful for sharpening the legal analysis. He was legitimately confused about the technology.

    CHIEF JUSTICE ROBERTS: Do any of these other people know about Arch Wireless? Don’t they just assume that once they send something to Quon, it’s going to Quon?
    MR. DAMMEIER: That’s — that is true. I mean, they expect –
    CHIEF JUSTICE ROBERTS: Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.
    MR. DAMMEIER: Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And –
    CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.

  28. The Supremes sound like they’d fit right in on Fark. I knew they were in the pocket of Repub big business but I didn’t know they were dicks.

  29. Gotta love questions/any line of argument that puts the court on trial as well as the issue at hand.

  30. Don’t be alarmed by the justice who reveals his ignorance by asking stupid questions. Be alarmed by the justice who hides his ignorance and lets the case move forward just to save face.

  31. i think i get it.
    if i send a email i have no expectation of privacy b.c it’s handled by the isp. if i talk on the phone ditto b.c of the phone company.
    if i send a letter i have no expectation of privacy b.c of the usps.
    and i guess since i rent my house i should probably be okay without privacy there too as the walls and floors that my sound waves bounce off are owned by my landlord.

    1. I think you’re starting to get it. We have far less privacy than we think we do.

      Be careful, though, not to confuse ‘privacy’ with ‘anonymity’.

    2. I think you’re reading a bit too much into it. The case is about about a police officer who was fired for the content of text messages sent over his work owned and issued pager. He had signed an agreement with the department acknowledging his emails and internet use on company resources would be monitored. The issue is whether that policy applies to the pager as well, or if the police department viewing his messages is a violation of his 4th amendment rights. So arguments about privacy based on where the communications are being routed through are in the context of an employee/employer resource relationship, not for every day people using their own devices. Context is key!

      1. Where does that place messages sent from a privately owned device that is subsidized by an employer? Would my employer have the right to monitor all of my communications, regardless of place and time? And subsequently fire me if they didn’t like what they see/hear?

        1. Good question, its not exactly in the scope of this case, with its company owned equipment used personally, but if that question ever came up in court, this eventual ruling would certainly be referenced in any decision.

          1. That’s exactly why I’m asking. Just because this case doesn’t directly address my questions doesn’t mean this decision wouldn’t be referred to as precedent.

  32. I feel the justices are being taken out of context. The most obvious public inference does not necessarily correspond with legal precedence or jurisdiction. The former does not preclude the latter, but the Supreme Court is one of the avenues which transform one to the other. Please keep an open mind when entering the Supreme Court chambers, they all do. Good luck!

  33. Hey Mark, I think the bigger issue is the dissonance between our current technology and the continued conservative few that laws need to be constructed out of a literal “interpretation” of the constitution. Our values may still hold true, which is what a good strategy leads to, but a good organization is adaptive and responsive to change. Our constitution needs to be re-interpreted, even refined, in light of social and technological change. Even if the justices are just trying to get things into the recrod for the record, the fact that the record is only now getting these things into it illustrates brightly how far off the details of our government are from the reality in which the citizen live.

  34. You can’t know everything about everything. It’s important for a justice to ask questions like this and to learn the details about what they’re deciding on, even if those of us who are experts find them simple and amusing. I’d rather the justices ask these questions and develop a basic understanding than make assumptions!

    This is the whole point of having a careful dialectical approach like this.

  35. The writer assumes they dont know the answer but often these questions are set to compare one case to another. So questions regarding whether a text is like an email is given to the attorney for him to tell how it is different or the same. Thats why they have this q and a not to show that they know but to see how the attorneys interpret information.
    Sometimes the questions are tongue in cheek to point out a flaw in an argument.

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