Dahlia Lithwick has an engaging piece in Slate that suggests that when it comes to plumbing the criminal mind (and for that matter, the law enforcement mind) the justices of the United Supreme Court might be, well, pretty clueless. For example:
Justice Sonia Sotomayor puts it this way: "We start out with a strong presumption that the Fourth Amendment requires a warrant, a strong preference for getting the warrant. So why in this situation wouldn't the first response of the police be, instead of knocking—because once they knock they alert the people in there—let's get a warrant; we'll come back?"
Scalia then asks what would have happened had the occupants of the apartment said, upon hearing the knock, "Oh, heck, no, you can't come in; do you have a warrant?" Farley replies that the cops would not have been able to force entry. The problem is that people don't know they can tell the cops to go get a warrant. Replies Scalia: "So basically the police were taking advantage of the stupidity of the criminals, is that right? That's terrible, that's not fair, is it?"
Perhaps instead of writing a scholarly book, or hunting pheasant, or attending major league baseball games, a justice should just sit down and watch a season or two of The Wire.
Read Crime and Blandishment: What happens when Supreme Court justices try to think like criminal suspects.
