Chief Justice Roberts and noir, it’s a bad genre

Chief Justice John Roberts is enjoying a ton of favorable publicity today for his channeling of Raymond Chandler in the first two paragraphs of a dissent yesterday from a Supreme Court decision not to review a ruling by the Pennsylvania Supreme Court in Pennsylvania v. Dunlap:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

While we’ve long been fans of the Chief’s writing flair, Roberts’ opinion is entirely predictable. He’s a law and order conservative who wants the courts to get out of the business of second-guessing the decisions made by police officers. Roberts argues that the police have “probable cause” under the Fourth Amendment to make an arrest whenever they see a “hand-to-hand” transaction in a high-crime area and asserts that “the Pennsylvania Supreme Court’s decision will make it more difficult for the police to conduct drug interdiction in high-crime areas, unless they employ the riskier practice of having undercover officers actually make a purchase or sale of drugs.”

Like in his Sprint v. APCC Services opinion last term, where Roberts cited Bob Dylan in support of a strained argument for limiting access to courts, Roberts is using rhetorical flourish to make the conservative goals of limiting constitutional protections and court access seem “cool.” Count us as unmoved.

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