Out of touch? Or out of context?

It’s pretty easy to dismiss the Supreme Court of the United States as “old” and “out of touch.”

The average age of the current justices is almost 70. They’ve generally spent their professional lives outside of the Supreme Court in academia or in circuit courts, appeals courts and the like. Midwesterners could point to the fact that all but one of the current justices were born in coastal states, the exception being outgoing Justice John Paul Stevens, a Chicagoan.

So, when the Chief Justice of the United States, John Roberts, asks the following question, the Internet, naturally, got a little worked up:

CHIEF JUSTICE ROBERTS: Maybe — maybe everybody else knows this, but what is the difference between the pager and the e-mail?

Of course, the Internet likely didn’t read the entire transcript of the oral arguments in Ontario v. Quon, a case with ramifications for electronic communications privacy. (NPR’s Nina Totenberg has the full summary here.)

It’s not uncommon for judges to ask “simple” questions or to reach for definitions. It’s part of the process of working through the legal minutiae. Even by reading the next part of the exchange, it seems clear that Chief Justice Roberts knows how email works, and that his original question was meant to tease out, on the record, the differences between a city-operated email account and a city-owned pager.

MR. DAMMEIER: Sure. The e-mail, looking at the computer policy, that goes through the city’s computer, it goes through the city’s server, it goes through all the equipment that — that has — that the city can easily monitor. Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off-duty.

CHIEF JUSTICE ROBERTS: You can do that with e-mails.

MR. DAMMEIER: Certainly, certainly. But in this instance with the pagers it went through no city equipment, it went through Arch Wireless and then was transmitted to another — another person. …

A little later however, Roberts asks another naive question and does not give the appearance that he’s leading Dieter Dammeier, the lawyer for the texters, to a response for the sake of the record.

CHIEF JUSTICE ROBERTS: What happens, just out of curiosity, if you’re — he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does he — does the one kind of trump the other, or do they get a busy signal?

MR. DAMMEIER: I don’t think that’s in the record. However, my understanding is that you would get it in between messages, so messages are going out and coming in at the same time, pretty much.

What’s ruling, News Cut Circuit Court? Out of context, or out of touch?