Posted by Orin Kerr:
Scott v. Harris and Driving in the 1930s:
http://volokh.com/archives/archive_2007_04_29-2007_05_05.shtml#1177958504
Over at SCOTUSblog, Marty Lederman notes a rather curious footnote in
Justice Stevens' dissent in [1]Scott v. Harris. In footnote 1, Justice
Stevens speculates about why he has such a different view of the
videotape than the Justices in the majority. Stevens speculates that
the Justices in the majority may have overestimated the risk because
they learned to drive when most highs-speed driving took place on
superhighways:
I can only conclude that my colleagues were unduly frightened by
two or three images on the tape that looked like bursts of
lightning or explosions, but were in fact merely the headlights of
vehicles zooming by in the opposite lane. Had they learned to drive
when most high-speed driving took place on two-lane roads rather
than on super-highways -- �when split-second judgments about the
risk of passing a slowpoke in the face of oncoming traffic were
routine� -- they might well have reacted to the videotape more
dispassionately.
This is a strange suggestion, I think. If I understand Stevens
correctly, he's suggesting that perhaps Justice Scalia (who is 71)
can't accurately judge the dangers of driving at high speeds on a back
road because he's too young to have learned how to drive comfortably
in that sort of setting.
Perhaps Stevens' suggestion is just too quirky to respond to, but I
think it's worth noting a flaw on its own terms. Justice Stevens was
born in 1920, so he probably learned to drive in the late 1930s. At
that time, though, cars simply didn't go as fast as the 100 mph of the
chase in Scott v. Harris. Most cars on the road in the late 1930s
topped out at around 60 mph. For example, an early 1930s Model A Ford
could hit around 65 max. The most powerful cars of the era could hit
90mph or so if you gave them miles of straight road -- and if you were
so lucky as to be driving a new [2]supercharged Auburn Speedster, you
could hit 100+ -- but such speeds weren't easy to reach on winding and
twisting roads. (Plus, cars of the day ordinarily were geared for
lower speeds, so driving at top speed put a serious strain on the
engine.)
I personally find this "generational" argument highly dubious in any
form. But if you find it persuasive, it seems to me it might just as
readily work against Stevens as for him: Perhaps Justice Stevens is
misjudging the dangers of the chase because when he thinks of "high
speed" driving on a two-lane road, he thinks of a chase at what were
considered high speeds back when Justice Stevens learned to drive.
References
1. http://www.scotusblog.com/movabletype/archives/05-1631_All.pdf
2. http://www.uniquecarsandparts.com.au/car_info_auburn_speedster.htm
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