Pop Culture at the Supreme Court

In a bit of levity last week, Justice Kagan quoted Dr. Suess in Yates v. United States. In her dissent she wrote: “A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).” The opinion was well timed considering that March 2 is Dr. Seuss’s birthday. (I didn’t know until my kids came home and told me that I forgot to get them Dr. Seuss costumes. Apparently this is something schools do these days.) Anyhow, it got me wondering about other times the United States Supreme Court had dropped its habitual formality and made reference to popular culture. The following is an incomplete list. Feel free to leave a comment with an addition.

1. Lone Ranger

In his dissent in Kyles v. Whitley, Justice Scalia used the Lone Ranger as an example of why seeing a suspect’s face should be enough to identify him or her. “[I]t is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer's face?’ will be laughed out of the courtroom.”

2. Superman

In Bertman v. J.A. Kirsch Co., Justice Black dissented because he thought the majority had unrealistic expectations about an attorney’s ability to know that the State had filed a last-minute appeal in his client’s case.

“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed—even in the closing hours of the sixtieth day. I do not doubt that had Bertman's counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk's office to see whether the Government would file a notice of appeal. But Bertman's counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”

3. Cinderella, Snow White, and Lord of the Flies

Most of the pop culture references come in dissents where the justices write in the first-person and generally have a bit more liberty. In Brown v. Entertainment Merchants Ass’n, however, the majority used the Brothers Grimm, The Odyssey, Dante’s Inferno, and the Lord of the Flies to illustrate how much violent imagery we present to children.

"Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

"High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187-189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).”

4. Casablanca

In Rapanos v. United States, a case about the Clean Water Act, the Supreme Court dropped a footnote about Casablanca.

“We are indebted to [the appeals] court for a famous exchange, from the movie Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters:

‘“Captain Renault [Claude Rains]: ‘What in heaven's name brought you to Casablanca?’

‘“Rick [Humphrey Bogart]: ‘My health. I came to Casablanca for the waters.’

‘“Captain Renault: ‘The waters? What waters? We're in the desert.’

‘“Rick: ‘I was misinformed.”’ 408 F.3d, at 1117.”

Why I'm Doing What I'm Doing

Since I started Thompson Appeals, I have found that some clients are confused about why I’m doing what I’m doing. I provide a full range of appellate services geared toward low-income and middle-income clients in Utah. To do this effectively, I usually charge a rate that is much lower than the standard rate. To the skeptic who’s wondering what I’m getting out of it, let me explain.

I spent the last year clerking at the Utah Court of Appeals. When I say I was a clerk, people often think that I was a clerk in the sense of the movie Clerks. Clerking for a court, however, is much more like being an assistant for a judge. Based on the judge’s guidance, you get to write the first draft of the opinions. You also get to read a lot of briefs and see a lot of cases move through the appellate process.

Doing this, I couldn’t help but notice that there was a wide range in the quality of representation. If the clients were indigent, they could often get help from Utah Legal Services or from the Legal Defender Association, both of which have a lot of experience and do a consistently good job representing their clients on appeal. If the clients were wealthy, they could afford top-tier appellate representation.  Many of the clients in the middle, however, were braving the appellate courts without an attorney who understood the appeals process or without an attorney at all.

To put it in the cold, hard terms of American capitalism, I saw an underserved demographic and decided to make that my niche in the marketplace. My rate is reduced to make it accessible to my target demographic, bit it’s still enough to cover my overhead and make a reasonable profit. I think that providing quality appellate services at an affordable rate is an inevitable market disruption, and I want to be ahead of the curve.

To put it in the bleeding-heart terms of American idealism, I saw an underserved population that was not always getting the justice it deserved. I wanted to help make the legal system more just, and I wanted to help people who didn’t have any other options.

I also love working with important legal issues. I love nerding out about the minutia of the law and obsessing over the subtleties of statutory language.

So, what’s in it for me? I get to establish a niche in a competitive marketplace. I get to help people. And I get to work with important legal issues. In return, my clients get quality appellate services at an affordable rate. Sounds like a good deal to me.