“Maybe everybody else knows this, but what is the difference between the pager and the email?”
Roberts isn’t asking about the difference between e-mail and a pager. He’s asking about the differences in how police department policy treated e-mails sent from a computer and texts sent from department-issued pager. He’s actually making a rather sophisticated distinction, not betraying his ignorance. The exchange preceding Roberts’ question features Quon’s lawyer Dieter Dammeier explaining the policy, “The city will periodically monitor e-mail, Internet use and computer usage,” and Justice Ginsburg asking if it wouldn’t be reasonable for an employee to assume the same would apply to texts sent via pager.…
What Roberts is trying to tease out is whether there are differences in reasonable expectations of privacy and the police department’s conduct depending on where e-mails are stored (on a government server) vs. where text messages are stored (by a private company).
Now, the Aereo case does have some great examples of the justices being confounded by gimcracks and befuddled by geegaws, but that doesn’t bother me much. Their job is to interpret and reconcile the decisions of lower courts, not to draft policy. They are experts in the law, and novices in every other field. Do you also expect them to have encyclopedic knowledge of human biology and reproductive medicine when hearing an abortion case? No; it’s the duty of the arguing attorneys to provide the background information. If one side leaves out a key detail, and the omission would harm the other side, then the other side fills it in. And outside parties file amicus briefs, and the justices do their own research in the three or four months it takes them to draft a ruling following oral argument. That’s the system. It’s not perfect, but it’s pretty good.
It does seems shocking when a justice doesn’t know how SMS works, because we—the Technopedants of the Internet—do, and because of the principle that it’s hard to imagine not knowing something that you know. But I guarantee you they ask questions that ring as dumb or dumber in the ears of subject-matter experts every time they hear a case. I’d be terrified if they didn’t.