There have already been numerous articles looking back on the notable decisions of the 2012-13 Term of the Supreme Court and the expected impact of those case. This isn’t one of those types of articles. This article is about nine (Sou)terrific things associated with the Court that happened this Term. Much like former Justice David Souter himself, these events were unpredictable and hard to characterize, and your view of them probably depends upon your political leanings.
9. Justice Breyer Rallies After Bike Accident — Justice Stephen Breyer has had his share of bad luck. In February 2012, he was robbed by machete wielding thugs while at his vacation home in the Caribbean island of Nevis. This April, he fell while riding his bike along the National Mall , his third major bike accident in the last twenty years. Despite undergoing shoulder replacement surgery (!!!!), Justice Breyer was back in Court for the announcement of decisions within a few weeks. Too bad nobody knows who he is.
8. Justice Sotomayor’s Best Seller — Justice Sotomayor released her biography “My Beloved World” in January. It was number 1 on the New York Time’s Best Seller list for four weeks, and stayed in the top twenty for fifteen weeks. She appeared on Sixty Minutes and the Daily Show. She referred to herself as Sonia from the Bronx, and was promptly sued by Jennifer Lopez for trademark infringement. Well, most of that happened.
7. Justice Thomas Speaks — For the first time in nearly seven years, Justice Thomas spoke during oral argument in January. He didn’t actually ask a question. Rather, those in attendance at the hearing and those since who have subjected the oral argument recording to the type of analysis not seen since the Zapruder film, have generally concluded that he was suggesting that an accused’s counsel had not been competent because they went to Yale, Justice Thomas’s law school alma mater. A good time was had by all. Justice Thomas began a new streak of oral argument silence immediately afterward.
6. Justice Kagan Evokes Clue – In the penultimate week of the term, the Court decided Descamps v. United States, with an opinion authored by Justice Kagan holding that a defendant’s past conviction for burglary under California law did not count for the purpose of sentence enhancement under the Armed Career Criminal Act. SCOTUSblog can give you more details about the Court’s reasoning. What’s important for this article is that in explaining how a hypothetical crime could be described as an “infinite number of sub-crimes corresponding to all the possible ways an individual can commit it,” Justice Kagan turned to the board game Clue at page 18 of her opinion: “Think: Professor Plum in the ballroom, with the candlestick; Colonel Mustard, in the conservatory, with the rope on a snowy day, to cover up his affair with Mrs. Peacock.”
Justice Alito, obviously more of a Risk or Boggle fan, took umbrage with Justice Kagan’s Clue analogy: “The board game Clue, to which the Court refers, does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim’s head with a candlestick, wrench, or lead pipe. But in real life, the colonel would almost certainly not escape conviction simply because the jury was unable to agree on the particular type of blunt instrument that he used to commit the murder.” Spoken like a true former prosecutor. Incidentally, have you noticed how much Colonel Mustard looks like Melville Fuller, the eighth Chief Justice of the Supreme Court? Probably not, but now you know.
5. Alito’s First Pitch – Justice Alito threw out the first pitch at a Texas Rangers game in Arlington, Texas. The pitch itself wasn’t unusual (it went to the right), but the timing, on Wednesday, June 20, was somewhat surprising, given the Court’s heavy workload at the end of the term, especially this term. However, this wasn’t a boondoggle for an avowed baseball fan, but rather part of a trip to Texas for a speech to the Texas Bar. And he was probably on top of his work since he seemed very relaxed during an in-game interview. Within a week, Justice Alito issued majority opinions in four cases (Vance v. Ball State, Mutual Pharmaceutical v. Bartlett, Adoptive Couple v. Baby Girl, and Koontz v. St. John’s River Water Mgmt. Dist.), concurring opinions in two cases (U.S. v. Kebodeaux and U.S. v. Sekhar), signed off on the Ryan v. Schad per curiam opinion, and issued a dissent in U.S. v. Windsor, the Defense of Marriage Act case. And what thanks did he get for all of this hard work? Slate called him a “big meanie” or words to that effect.
4. Meathead Goes to Washington - Rob Reiner, better known as “Meathead” from All in the Family, bought a place at the front of the line for the oral argument for Hollingsworth v. Perry, the California Proposition 8 case concerning same-sex marriage. It’s not really fair to refer to him as simply Meathead, after all he was later the director of movies like This is Spinal Tap, The Princes Bride, When Harry Met Sally, A Few Good Men, and The Bucket List, but when someone has a great nickname like “Meathead,” even if it’s for a fictional character, I tend to stick with it.
3. “Some Old Pilgrim” – A Saturday Nights live sketch this Spring about a gameshow called Game of Game of Thrones made light of how much the contestants on the show knew about HBO’s Game of Thrones, but how little they knew about the real world. One contestant, portrayed by Zach Galafianakakakakakis was shown a picture of Ruth Bader Ginsburg and asked who it was. His response: “Some old Pilgrim?” Would some old Pilgrim have a personal trainer? I think not. Watch your back, Zach.
2. Is Jenny There? – In American Trucking Associations v. Los Angeles, a case involving federal preemption of parking rules at the Port of Los Angeles (hey, wake up, I’m still talking), Justice Kagan included the Greatest Cultural Reference in the History of Supreme Court Opinions. I do not use this phrase lightly, and if I do my job here, it will become quite clear how well-deserved this label is.
On Page 2 of her opinion, Justice Kagan was discussing a Port of Los Angeles requirement that required trucking companies to “affix a placard on each truck with a phone number for reporting environmental or safety concerns (“You’ve seen the type: “How am I driving? 213-867-5309.”) I’m somewhat embarrassed to admit that when I first saw the phone number, I thought “gee, it’s surprising that she’d use a real phone number.” But much like a number beginning with “555,” 867-5309 is likely not a real number for anyone. And anyone who used to have that phone number has Tommy Tutone to thank for that.
Tommy Tutone was (as I just discovered from Wikipedia) not someone’s real name (you mean there’s no one named Hootie either?) but rather the name of a power pop band from somewhere in California. After a reasonably successful first album with a top-40 hit that I’ve never heard of, Sir Thomas Tutone had their 15-30 minutes of fame with the song 867-5309/Jenny , which peaked at number 4 on the Billboard Hot 100 in 1982. (As the linked video shows, this was a period in rock & roll history when lead guitarists thought it was cool to wear sport coats. It was also before Cool Ranch Doritos were available. These were dark times.)
For those of us of a certain age, 867-5309 was not merely a song, but a cornerstone of any quality sleep over. Who among us has not at some point called 867-5309 in their local area code and asked if Jenny was there? For the true zealots among us, we would cycle through all of the area codes that we could think of (a number that, thankfully for our parents who had to pay our long distance bills, maxed-out at about four before we could look up such things on the internet) in our never ending search for Jenny. Of course, if someone named Jenny actually lived at that number, we would hurriedly hang up in a panic.
The number 867-5309 holds a certain nostalgic place in my heart. Last year, I was doing a CLE about patent law and referenced a fictional patent number 8,675,309 issued to an inventor “Jenney” (I wish I were making that up, but I’m not.) Justice Kagan’s reference is the type of cool little device that I would usually attribute to a law clerk, but given that all of her law clerks were probably born after the song was released (ouch), I think that one was all Kagan. Best of all, the decision of the Court was unanimous, and even Justice Scalia didn’t feel the need to limit his concurrence to everything but that parenthetical. The reason is clear: Justice Scalia is obviously a closet Tommy Tutone fan.
1. Scalia’s Inauguration Hat — Speaking of Justice Scalia, maybe you heard that he wore a really cool hat to the Inauguration. Apparently, it was a replica of the hat made famous by Sir Thomas More. Anyway, Scalia’s hat nearly made Twitter explode. Sadly, it completely overshadowed a skullcap worn by Justice Breyer, and Justice Kennedy’s old school ski cap (Justice Breyer should have gone with his Cat-in-the-Hat hat). Justice Alito had no need for a hat; instead, he wore sunglasses and may have fallen asleep.
Justices Kennedy and Breyer really didn’t do anything notable this term, except, of course, for those decisions during the last week. If you’re interested in the Court’s actual decisions from this term, you can brush up on them at the Supreme Court Haiku Reporter or SCOTUSblog. If you don’t, Justice Scalia’s hat will haunt your nightmares.