Hey you, flock of seagulls, point to something 35 feet away from you right now. Nope, your computer screen is too close… unless you are extremely far-sighted. The window in your office? You must have a really nice office. The bathrooms? What are you, a janitor?
Admit it, you have no idea how long 35 feet is. You also have no clue where your team has to get to for a first down without a CGI yellow wussy line, and you can’t land a plane in GTA V, much less a real one. You have poor spatial awareness, you suck, and Captain Kirk would blow you out of the Mutara nebula.
In that way, you are just like the justices on the Supreme Court who struggled to conceptualize the 35-foot buffer zone at issue in McCullen v. Coakley…
I don’t want to get into a full substantive discussion about the McCullen case and the constitutionality of the 35-foot “buffer zone” around abortion clinics in Massachusetts. Tabo has had her say, it’s a safe bet to assume I disagree with all of it. In fact, I think halfway through this segment on HuffPost Live I manage to threaten all Christians. Whatever.
What I do want to talk about is the lack of common sense that can be exhibited in our nation’s most important courtroom. Slate tells us about the Supreme Court’s struggles to conceptualize 35-feet:
There was Justice Elena Kagan’s attempt: “You know, 35 feet is a ways. It’s from this bench to the end of the court,” she said. “It’s pretty much this courtroom. … That’s a lot of space.” The problem: According to the court’s website, the chamber measures 82 feet wide by 91 feet long.
I can only imagine that this is Kagan estimating the size of an average penis based on her dimensional awareness of her own courtroom.
It wasn’t just Kagan:
Deputy Solicitor General Ian Gershengorn came closer with his guestimation, but was still a decent ways off: “It is from me to the marshal [who sits next to the justices], not to the back of the courtroom. It is an NBA three-point zone,” he said. In reality, however, the NBA three-point line is actually 23 feet, 9 inches from the basket (except in the corners, where it’s 22 feet). So closer, but still no cigar.
We’re not making fun of these very smart people for no reason. The ability to understand “space” is at the heart of McCullen v. Coakley. Remember how we got here: Massachusetts had a law that said you couldn’t come within six feet of a person who is within 18 feet of an abortion clinic. That was a perfectly good law that seemed to balance the importance of free speech, and our right to walk into a clinic unimpeded by crazy people. I don’t know that your “personal space” extends six feet away from you. I live in New York City — my personal space doesn’t extend as far as my ass on the 4, 5, and 6. But when you are trying to walk somewhere, and a nut job zealot gets within six feet of you and tries to make you feel bad about what you are doing, that’s pretty intimidating. A reasonable person could find that preventing such encroachment is a narrowly tailored restriction on speech.
Of course, Massachusetts’ old “roving buffer zone” statute turned out to be TOTALLY UNENFORCEABLE. Why? Because most people have no spatial awareness. People don’t know where six feet is, and people certainly don’t know how far 18 feet is from the clinic. So Massachusetts scrapped that law and went to this simple 35-foot rule… with a big ass line demarcating the boundary. Is that reasonable? Is that narrowly tailored? How the hell do you know if you can’t conceptualize 35 feet? How the hell do you know if you can’t conceptualize 18 feet, or six feet, or however many feet it takes to make you feel like somebody is impeding your progress?
Eventually Sonia Sotomayor kind of got it right:
Justice Sonia Sotomayor came to the rescue with a rough—but fairly accurate—estimate: “It’s two car lengths,” she said. Obviously, there’s plenty of variables at play with that estimate, but it’s definitely in the ballpark. A Toyota Camry, for example, is nearly 16 feet from end to end.
I don’t know if it’s reasonable to restrict speech within two car lengths of you in certain situations, but I do know that the people arguing about it should be able to accurately visualize how far away that is. This case is going to have real world consequences on how much women can be intimidated — maybe there needs to be a SCOTUS field trip so the justices get a sense of the dimension of their decision.