Call it the case of the justices versus modern times.

Just prior to this column going to press, the Supreme Court heard arguments in United States v. Wurie (and Mr. Wurie's cell phone). The case centers on whether the Fourth Amendment protects against warrantless searches of a cell phone possessed by a guy who is already under arrest.

I don't know how United States v. Wurie is going to be decided, but I'm betting on a 5–4 decision that basically grants the police the right to examine the contents of your cell phone and possibly your stomach and small intestine. Meanwhile, at the Web site Techdirt, blogger Parker Higgins pointed out a telling bit of the back and forth during the oral arguments between the justices and a lawyer for Wurie concerning how regular people in America use cell phones.

Chief Justice John Roberts was intrigued that Wurie was apparently carrying two cell phones: “The police have told us [that drug dealers] typically use cell phones to arrange the deals and the transfers, and this guy is caught with two cell phones. Why would he have two cell phones?” Wurie's lawyer, Judith Mizner, explained, presumably patiently, “Many people have multiple cell phones.”

An intrigued Roberts asked Mizner to back up her claim regarding the commonality of multiple cell phones: “Really? What is your authority for the statement that many people have multiple cell phones on their person?” Mizner, apparently reacting as if she were asked how she could be so sure that many Americans drive to work, said, “Just observation.” At which point Justice Antonin Scalia popped in with: “You've observed different people from the people that I've observed.”

Maybe the justices' robes have no pockets, which could limit their ability to carry cell phones. Yet as Higgins points out in his blog, it's a good bet that “at least half of the lawyers in the Supreme Court Bar brought two cell phones with them to the courthouse that day.” My brother is a lawyer who has been admitted to the Bar of the Supreme Court, and he had to buy cargo pants so he'd have enough pockets for all his cell phones.

In fact, and I hope that this does not immediately make me a criminal suspect, I have two cell phones. I bought a Samsung Galaxy a couple of years ago, and last year Scientific American issued iPhones to all its editors. So I use the Galaxy for all my usual smartphone activities, such as e-mail, Web browsing and texting, and I use the iPhone for my drug deals. By which, of course, I mean refilling my prescriptions at Walgreens. Because that drug chain has a really good iPhone app: you just scan your medication bar code, and an hour later you've got Nasonex up your nose.

So Justice Scalia either truly travels in circles where people have zero or one cell phone, or people in his presence are not dumping the contents of their pockets for his perusal. Or he's not observing accurately. Or some combination of those three possibilities. Scalia also compared a cell phone to a pack of cigarettes, in that police should be able to just open it and look inside. There is a certain logic to that view if what they're looking for is a microprocessor or an accelerometer rather than one's banking information, personal correspondence, unfinished screenplay, U.S. Constitution app and extensive collection of selfies.

I know lawyers who proudly proclaim that it was their forebears who created the Constitution of the United States that George Washington swore to uphold in 1789, when doctors were practicing the bloodletting that likely hastened Washington's death a decade later. Physicians and their colleagues in biomedical research have come a long way since then, having, for example, sequenced the entire human genome. They engage in the occasional bloodletting only when it can be efficacious against hemochromatosis. But Supreme Court justices fully engaged in the 21st century may be in a 5–4 minority.
 

Steve Mirsky adds on 6/25/14: I'm pleased to learn that the Supreme Court just decided unanimously that your cell phone is in fact not like a pack of cigarettes. To read about the decision, go to: http://www.nationallawjournal.com/legaltimes/id=1202660769058.