READ THAT BACK: Ay-yi-yi Edition


The Court Reporter had a lot to say this week, so, uh, sorry? But also not sorry. Anyway, as it’s an abbreviated week, you’ll have all kinds of extra time to READ THAT BACK! So do it—but also be sure to take some time to celebrate this uniquely American holiday.

Programming Note: The Court Reporter is taking next week off to give thanks and spend time with friends and family. (I mean, unless something really insane happens…so call it a 50/50 chance.) The next (regularly scheduled) RTB will be Dec. 4.

More Free Speech Fun: In high school a million years ago the Court Reporter’s U.S. History teacher began (almost) every lecture by exclaiming “Theme!” The Supreme Court seems to have taken a page from Mrs. Namewithheld (who was a fantastic teacher). For some time now they’ve had themed argument days—there’s a patent theme for the Nov. 27 arguments, a securities one the following day, and we’ll see more in the January oral argument session, when they handle two water-based original jurisdiction cases on the 8th, followed by a pair of vehicular-themed search-and-seizure criminal cases on the 9th. But now they’re branching into other themed events, like cert. grants! We got three on Monday Nov. 13, and they all involve free speech—including a hot-button abortion issue and a repeat player at the court. The Court Reporter hasn’t given this a whole lot of thought, but perhaps if so many substantive areas are all being dealt with through the lens of free speech…maybe free speech doctrine has gotten a bit out of hand.

Packing Heat: FDR did a lot as president, and like it or not he left a mark on American governance that continues to this day. But one thing that is generally regarded as a bridge too far was his abortive court-packing plan, which might not have worked anyway and was obviated by the famous “switch in time that saved the nine.” FDR’s plan never came to fruition, but if the Federalist Society has its way, Trump’s might. A recent proposal, as reported by the progressive news site, Think Progress, suggests adding more than 300 federal judges—all of whom, of course, would be nominally chosen by Trump, but indirectly by the Federalist Society.  Trump has already nominated four judges deemed unqualified by the American Bar Association, and has led to calls for him to rethink the way he approaches appointments to the bench. And it has led to a call for Chuck Grassley, chair of the Senate committee that approves (without exception) those nominations, to stop being Trump’s errand boy in the process.

With Friends Like These: Insofar as anything can be said to dominate the national conversation anymore, this past week it was dominated by sexual abuse allegations. Those against Judge-turned-not-turned-Judge-turned-not-turned-Senate-candidate Roy Moore expanded, bringing (non-credible) threats of litigation from the politician. (And strong criticism of his lawyer.) And new ones were leveled against comedian-turned-actual-Senator Al Franken, who responded with an apology and is now facing a Congressional ethics investigation (and additional allegations). The allegations against Franken wouldn’t normally make the pages of the RTB which focuses on the courts, were it not for the bizarre reaction of Ohio Supreme Court Justice and gubernatorial candidate Bill O’Neill who boasted of sexual affairs with 50 “very attractive” women and exhorted folks to “lighten up.” There’s a lot wrong here, not the least of which is the confusion of consensual adult sexual conduct with grabbing someone sexually while they’re asleep. Ohio Chief Justice Maureen O’Connor was not amused. On the other hand, O’Neill’s complete misunderstanding of the problem of sexual abuse highlights exactly why we need to be having this conversation.

Virtual Insanity: Jamiroquai notwithstanding, the present seems to be made of insanity and the future appears to be virtual reality. The technology—ranging from augmented reality applications on our devices to full immersion simulations—will soon be coming to a courtroom near you! Hopefully they’ll remember to keep the safety protocols on. Guys, nerds run the internet. (And I was served Best Buy ads for a VR game when I visited that page, so kudos to everyone for bringing it full circle.)

ICYMI:

  • Although the Court Reporter generally agrees with Linda Greenhouse that “objectivity” and “balance” aren’t the same thing, and that the former is preferable to the latter, I can’t help but be a little put out by the title of this article. Must be the generational thing—I doubt Linda is a Xennial (which is still nonsense).
  • The Court Reporter also believes that this NYT op-ed makes several good points in arguing that the courts have assumed an outsized role in modern politics (and perhaps nothing makes the point more succinctly than this statement from Alabama governor Kay Ivey)—but wonders what, exactly, their power would be replaced with.
  • The Washington state Supreme Court permits Tarra Simmons, a former inmate turned law student, to take the bar—with some assistance from Shon Hopwood, a former inmate turned law professor. Here’s to second chances.
  • New Jersey Senator Bob Menendez’s corruption trial ended in a mistrial. THANKS, SCOTUS.

And Now…Much Ado About I: I don’t think it is a surprise to anyone that a profession as finicky as the law attracts the fastidious. And fastidious people tend to have very specific ideas of what to be fastidious about. For example, the Court Reporter still remembers the joy in the newsroom when it was announced that Bloomberg Law would henceforth begin using the Oxford comma.

(The Court Reporter is going to take an outrageous position on this: The Oxford comma doesn’t matter. Any purported problem created by its absence can be alleviated by reordering (JFK, Stalin and two strippers) or expanding the list (Name the strippers! They’re people, too!). The amount of ink, both real and virtual, that has been shed arguing—even in jest—about the Oxford comma is far, far out of proportion to its importance. There I said it. Direct your angry emails to two people who care, my boss and her boss. Now while you try to figure out how many people you’re emailing—two or four—back to the matter at hand:)

On Nov. 13, the Fifth Circuit handed down a decision in Alexander v. Verizon Wireless Servs., LLC, about…oh, something or another it doesn’t matter to my point. The opinion by Judge Jennifer Walker Elrod spent an entire page-broken footnote—more than 230 words—on whether or not the ‘I’ in internet should be capitalized. It’s footnote 12 for those of you wanting to see it for yourself. Professor Orin Kerr tweeted a tl;dr: “Held: Yes, capitalize it.”

She noted that almost no one else still capitalizes the I, but chalks that up to me-too-ism—which actuallybegs the question, and not in the way most of you misuse the phrase. Instead, she says, the capital I is correct to distinguish the Internet from all of those other the internets, and not wanting to press a shift key isn’t a good enough reason to blur the distinction.

Perhaps Judge Elrod isn’t explaining herself well here, but, what? The Court Reporter genuinely has no idea what she means by “other internets.” Regardless, whether or not there are other internets doesn’t make the internet that we all think of when we say “internet” anymore a proper noun, and in any event who needs a capital letter to denote a proper noun anyway? And no one will ever accuse the Court Reporter of being the most energetic person on earth, but I have never begrudged a shift-keystroke. Case in point: I still use the shift key to type the word “I,” and (almost) all word processing or text entry software autocorrects that for you. (The less said about Bloomberg Law’s content management system, the better.)

No, I write internet with a lower-case I (see?! Autocorrect) because I, who started using the internet back in the wildcatting days before there was a yahoo.com (let alone google)—we’re talking more than a quarter century ago here and shut up I’m not old you’re old—have always written it that way, and have always seen it written that way except in the stodgy old publications for which the use of the capital I was a symptom of their stodgy oldness. To the extent that this policy is some kind of attempt to stave off genericide for the word “internet,” (which isn’t a trademark anyway) I’m afraid that horse has already left the barn.

But we’ve been warned. Those of you who practice in the Fifth Circuit, keep those shift-pressing pinkies in fighting shape!