READ THAT BACK: Feuds, Evil Twins, and Toes


It was a quiet week at the Supreme Court last week—there wasn’t even a conference on Friday—but that doesn’t mean that nothing happened! It actually gave us a chance to dive into some of the quirkier things they’ve been dealing with, and in this day and age that’s saying something. It helped that the non-legal news world was relatively quiet. I mean, as such things are measured these days.

Of course, as I write this it’s not yet 5:00 on Friday afternoon, so all that could change any second now.

Let’s READ THAT BACK.

Step Aside, Bette and Joan: Trying to get hot goss out of the Supreme Court is like a cool mom trying to relate to her teenage daughter. It doesn’t happen. EXCEPT WHEN IT DOES, which is why the rumors that Justices Elena Kagan and Neil Gorsuch are butting heads hit with such force. What does this mean for the court’s legendary cordiality? The Court Reporter has met Kagan twice (not that she’d remember), and can vouch for Slate's Mark Stern’s characterization of her (“does not suffer fools gladly” indeed!); I can offer no insight as to Gorsuch. (Sidebar: Is the Court Reporter the only person who thinks of Benny & Joon when someone says “Bette and Joan”? Actually, the Court Reporter is probably the only person who thinks of Benny & Joon ever.) (Side-Sidebar: Look at the “People who liked this also liked…” section on that IMDB page. It’s basically Johnny Depp’s career before anyone would have described him like this.)

The Phantom Justice: Hey, remember when we got that new justice on the Supreme Court a couple weeks back? No? Oh, right, because it didn’t happen. But that didn’t stop the mysterious—and probably nefarious (Monocle and mustache: the Twin Ms of villainy…and peanuts…and Monopoly, I guess)—Justice Solito from making an appearance in the court’s official transcripts! Turns out, the court’s new transcription service is having some difficulties (re)adjusting to its new-old role.

The Worst Kind of Originalism: One of the Court Reporter’s duties is maintaining a list of all the merits briefing that gets filed at the Supreme Court. It’s super exciting, high-paced work (pictured: not the Court Reporter). For convenience, this list is organized by docket number, which is of course split between the two digit term-year and a number that simply counts the order in which the cert. (or in rare cases mandamus) petition was received. EXCEPT for cases in the court’s original jurisdiction, which have “Orig.” instead of the year code, MESSING UP THE COURT REPORTER’S FILING (pictured: not the Court Reporter’s desk. You can tell because THERE’S A WALL BEHIND IT). Anyway, read more (subscription required) about these vile organizational miscreants, and why they think they’re so special.

Posner Farewell Tour Begins: Judge Richard Posner’s sudden September retirement may have left a hole on the bench, but he didn’t disappear completely. First he released a new book with a peculiar simultaneously high-minded and petty title, which one reviewer described as—well, it’s unprintable, but begins with “bat” and rhymes with “spit” and refers to a specific type of "crazy." Then, making good on his promise to help pro se litigants, he moved to assist one such litigant in the Fourth Circuit as advisory counsel. The choice is perhaps an odd one—an alleged patricide whose claims appear to fall somewhere on the conspiracy theory spectrum—but Posner is as Posner does. As farewell tours go, this is maybe not the way to start. The Court Reporter is reminded of the words of a friend who said of Cher (who is still performing) some 15 years ago on her seemingly interminable farewell tour: Honey, we love you, but we can’t miss you unless you GO AWAY.

[Insert Depressing Slide Whistle Sound]: The Court Reporter was never much a fan of Wheel of Fortune (I prefer my wheel-themed game shows animated), although it was better when the winners actually had to go on those “shopping sprees” after winning each round and buy, like, overpriced porcelain dalmatians and ugly luggage sets and game show hosts and get the rest on a Service Merchandise gift certificate. Which brings us neatly to bankruptcies! Which are at a 10-year low—but for which some are beginning to push for reforms, advocating removing the debt limits from Chapter 13s, and permitting no-money-down Chapter 7s. Not that the Court Reporter knows a lot about bankruptcy, but it does seem a bit of a Catch-22 that you have to pay to go bankrupt.

ICYMI:

  • We did get one more blockbuster added to the calendar this week. I would not have suspected before last year that subpoenas about emails would be such a big deal, and YET.
  • One other thing the Supreme Court did do this week: Lighten its workload. It took Leidos v. Ind. Pub. Ret. Sys. off the calendar while the parties pursue settlement negotiations, highlighting that a cert. grant, though glamorous (as such things go) isn’t always good for business.
  • As the college football season heats up, so does litigation over repeated head injuries. (I don’t know the scientific provenance of this gif, but man if it doesn’t drive the point home.)
  • Litigation against J&J could be shifting to other states.
  • And anyone who knows anything about legal journalism will surely have already heard the news that David Lat is stepping down from his post as Managing Editor at Above the Law.

And Now…You Betta (Fact) Check Yourself: There’s a memorable scene in The Big Lebowski, where the Dude’s loyal but intractable sidekick Walter Sobchak insists: “You want a toe? I can get you a toe!” (NSFW language)

The point of this reference (at least for our purposes here) is to show that, sometimes, even things that seem like an incontrovertible fact—take, for instance, a severed toe with green nail polish MUST belong to one Bunny Lebowski—may not be totally reliable.

Well, thanks to a recent ProPublica piece, we now know that the Supreme Court has been on the receiving end of a few green toes of their own. That is, “New s#*! Has come to light!” (NSFW language—Do I have to keep repeating this? I mean, come on, we’re talking about the Dude here!) The story is worth a read. There are plenty of cases—many that would be familiar to even the most casual Supreme Court watcher—with plenty of statistics, facts, and claims that turned out to be way off the mark.

This, of course, isn’t the first time that the media has covered this phenomenon. But last week’s story assembles a laundry list—more like a dirty laundry list (Language people!)—of examples that has people asking questions about how to fix the problem. For example, Fordham Law Professor John Pfaff argues that the court could put together a group of technical advisers—social scientists, statisticians—to help it assess the validity of empirical evidence. The justices could even start by hiring clerks with the necessary skills.

However it’s addressed, this seems like it could be a big problem for the court’s credibility if nothing is done. I mean, mistakes, no matter how innocent, often make you look foolish and can put you in real danger.