The Ultimate Dissent

The majority’s reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results. It applies a one-way ratchet. It proves the opposite. It constructs, then tears down a straw man. It eviscerates settled caselaw. It misreads the pertinent text. It is dangerous. It will open the floodgates. It equivocates. It is judicial activism. It assumes its conclusions. It generates inefficiencies. It is unscholarly. It disregards public policy. It is circular. It usurps the jury’s function. It lacks any basis in precedent, legislative history, or the language of the pertinent regulation, statute, treaty, and/or Constitution, and in fact, runs directly contrary to all of these sources. It misapprehends the parties’ respective burdens. It tries to have things both ways. It is its own best refutation. It misses the point. It sows mischief. It is hopelessly ambiguous. It opens a Pandora’s box. It obfuscates rather than clarifies. It does not—indeed cannot—adequately answer the question. It is dicta. It unnecessarily decides a Constitutional question. It misreads the record. It elevates form over substance. It will have perverse effects. It disregards the evidence. It is inapposite. It misconstrues the issue. It is unsettling. It unleashes a parade of horribles. It denigrates a venerable institution. It pounds the table. It is internally inconsistent. It perpetuates iniquity. It is regrettable. It will be resigned to the ash heap of history. It is a Morton’s Fork. It is grossly unfair. It misses the mark. It collapses under its own weight. It is unworkable. It dashes settled expectations. It draws illusory distinctions. It is a non sequitur. It begs the question. It relies on overruled authority. It raises issues that the parties do not. It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.

Therefore, I concur only in part.

“Names Deserving of Consideration for Court Vacancy,” 1962

To prolong the discussion of the John F. Kennedy library, that institution has been quite good about posting interesting documents from the Kennedy Administration online.

One such document, from March 1962, is titled “Names Deserving of Consideration for Court Vacancy.” This memorandum, authored by Ted Sorensen, lists possible candidates for the vacancy on the Supreme Court that was created when Justice Charles Whittaker retired. Ultimately, the nod went to Byron White. (The memo can be found within this batch of posted documents.)

If you’d like, slip back into a “Mad Men” state of mind and take a guess as to who appeared on the list. One hint: the list is divided into four categories: (1) Members of the Administration and the Senate, (2) Members of the Federal Judiciary, (3) Members of the State Judiciary, and (4) Members of the Bar and Academic Community. I’ll post the answers after the jump, along Sorensen’s recommendation to the President.

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Shifts In Law Professors’ Views

A friend of mine, Scott Rafferty, wrote a tremendous senior thesis at Princeton back in the 1970s on the enforcement of civil rights laws during the Kennedy Administration. As part of his research, Scott interviewed a bunch of former attorneys for the Civil Rights section of the Department of Justice. Scott typed out his interview notes and donated them to the John F. Kennedy presidential library, where they remain today, and where I consulted them a few weeks ago.

Rafferty’s notes of his interview with John Doar contain an interesting observation by Doar. Referring to the Kennedy Administration’s failure to rely heavily upon the Fourteenth Amendment as a basis for the enforcement of civil-rights laws, Doar said (and here Scott may have paraphrased Doar, but I’m going to quote his notes), “You have to consider what the Fourteenth Amendment meant in 1960. The difference of what the law school professors thought was constitutional in 1960 and what they thought was constitutional in 1965 was just incredible.”

I don’t know if Doar was correct that there was a marked shift in opinion among law professors on this issue over this brief span. Regardless, his comment got me to thinking about what other issues may have witnessed similarly dramatic, swift shifts in the prevailing views of the professoriate (without prompting by significant intervening changes in the law, mind you).

Gay marriage came immediately to mind, due to the ongoing evolution of popular opinion on the topic, but my hunch is that a majority of law professors have supported gay marriage for at least 20 years now, and before then, it was less a matter of committed opposition than a general failure to consider the possibility of gay marriage at all. Another, more likely possibility might be a shift with regard to the merits of isolationism prior to World War II. I have absolutely no sense of the midcentury scholarship on this point, however, and isolationism represents more of a political issue than a legal one. So I can’t think of another example, at least not offhand. I wonder if other professors can.

Post-trial Memoranda from Floyd v. City of New York (Stop-and-Frisk Litigation)

I haven’t been following the Floyd lawsuit that challenges New York City’s stop-and-frisk practices as closely as I should, and I need to fix that. Just today, I downloaded the postrial memoranda that the defendants and the plaintiffs filed with the district court, to read over the next week or so. In case any of you would like to read these documents, too, I have posted them here (defendants’ memorandum) and here (plaintiffs’ memorandum).

From the Archives: The ACLU Urges RFK to Prosecute (1963)

It’s strange to see ACLU brass support a criminal investigation, as occurred yesterday when executive director Anthony Romero issued a statement relating that it was “imperative that the Department of Justice thoroughly examine whether the [Trayvon] Martin shooting was a federal civil rights violation or hate crime.”

Strange, but not unprecedented. Back in 1963, the executive director of the ACLU wrote Robert F. Kennedy to encourage Kennedy’s Department of Justice to pursue more cases under 18 U.S.C. § 242, a federal civil-rights statute. John de J. Pemberton wrote his letter to RFK to discuss the filing of Moses v. Kennedy and Hoover, a lawsuit that sought to compel the Federal Bureau of Investigation and Department of Justice to investigate and prosecute, where appropriate, section 242 violations that were occurring non-stop in Mississippi.

(Aside: The lawyers for the plaintiffs in Moses were William Kunstler and William Higgs. Everyone still knows who Kunstler was. Higgs not so much, which is a shame; he’s one of the lost legends of the civil rights movement and had a fascinating, if short, life. A few snippets here and here.)

In his letter to Kennedy, de J. Pemberton wrote:

It is our understanding that few if any Section 242 prosecutions have been instituted in Mississippi within the past few years. With the dramatic increase in civil rights activity in the South, the need for protection and assistance, as demonstrated by the Moses suit, is made all the more imperative.We urge as forcefully as possible that the Department of Justice give serious attention to the questions raised in the Moses suit.

Ultimately, Moses was thrown out of court, as it had to be, with the judge concluding that the ”complaint must be dismissed because it seeks remedies which, in the context of the above pleadings, this Court has no power to grant.” (The district court’s decision tossing the case can be found at 219 F.Supp. 762.)

After the jump, I’ve posted photographs of de J. Pemberton’s letter, Burke Marshall’s response on RFK’s behalf, and de J. Pemberton’s reply. (These documents can be found in Box 76 of the Burke Marshall papers, within the Department of Justice Record Group at the National Archives in College Park.)

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Federal Charges Against George Zimmerman?

I deliberately avoided coverage of the George Zimmerman trial, as I did the Casey Anthony trial, the O.J. Simpson trial, and most other high-profile cases. But upon waking up this morning, I did take notice of Zimmerman’s acquittal and ensuing calls for federal authorities to bring “civil rights charges” against him. This got me to thinking, what civil rights charges? And how likely is it that the federal authorities will file these charges?

Upon review, it appears that the closest “fit” among federal crimes would be 18 U.S.C. § 249, a recently enacted federal hate-crimes statute (officially, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). Section 249(a) provides:

(a) In General.—

(1) Offenses involving actual or perceived race, color, religion, or national origin— 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or
(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
Section 249(a)(2)* is to similar effect, except that it applies to crimes motivated by “the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and contains a more elaborate federal jurisdictional “hook.”
What is the government’s track record in section 249 cases? Well, there have been few section 249 prosecutions to date. In looking for cases that have concluded their district-court phase, I could find only the following:
United States v. Maybee: Last summer, in United States v. Maybee – timing-wise, the first appeal of a conviction under section 249 — the United States Court of Appeals for the Eighth Circuit affirmed a defendant’s jury-trial conviction under section 249. Per the government’s appellate brief, the evidence at trial “established that defendant, along with two others, while driving his truck, chased a car occupied by five young Hispanic men and deliberately used his truck to repeatedly strike the victims’ car, ultimately causing the car to crash and burst into flames.” The record also contained abundant evidence that the defendant and his companions (one of whom pleaded guilty to a section 249 charge prior to trial) used racial slurs against the victims just prior to the attack.

United States v. Hatch Earlier this month (July 2013), in United States v. Hatch, the Tenth Circuit affirmed a conviction, upon the defendant’s guilty plea (reserving right to appeal), of conspiracy to violate the statute. According to the Court of Appeals, “In April 2010, a mentally disabled Navajo man—whom the record identifies only as ‘V.K.’—came to [a] restaurant. [Another individual] convinced V.K. to come to [his] apartment. Hatch and [a third person] later joined [them] there. At [the] apartment, the three white men drew on V.K.’s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.’s arm.” One of Hatch’s two co-defendants also was convicted upon plea of a section 249 charge; the other was convicted upon plea of conspiracy to violate this law.

In both Maybee and Hatch, the defendants argued that section 249 was unconstitutional, in that Congress lacked authority to enact the statute. Both Courts of Appeals rejected this argument, concluding that the Thirteenth Amendment conferred sufficient authority upon Congress.

United States v. Mullet: Some of you may have heard about this case, in which the defendants were charged with federal crimes for, inter alia, cutting off the beards of their foes within the Amish faith. The lead defendant, Samuel Mullet, Sr., was convicted by a jury of violating section 249, as well as other crimes. More than a dozen co-defendants also were convicted of conspiring to violate the statute.

United States v. Thompson: Here, the defendant pleaded guilty to a single section 249 count. The felony information, filed in the District of Minnesota in July 2011, alleged that Thompson struck an elderly Muslim man of Somali descent while telling him to “go back to Africa.”

United States v. Hall: A 2013 guilty plea by a member of the Aryan Brotherhood. Hall, an inmate in a federal prison in Texas, assaulted another inmate whom he believed was gay.

United States v. Larson: A guilty plea associated with an assault upon a Sikh cab driver in Washington state. The incident took place in October 2012; Larson entered his plea in June 2013 in the Western District of Washington.

United States v. Jenkins: This federal prosecution, brought in 2012, stemmed from the kidnapping and assault of a gay man in Kentucky. Two female defendants pleaded guilty to aiding and abetting a hate crime assault, in violation of section 249. Their two male co-defendants pled not guilty and went to trial. At trial, the men both were convicted of kidnapping and conspiracy charges, but were acquitted of the section 249 crime.

Unfortunately, I don’t know if these cases represent all section 249 prosecutions to date. I may have missed a case, especially if it led to a dismissal or acquittal (making the DOJ somewhat less enthusiastic about issuing a press release).

Nevertheless, it’s pretty clear that the feds don’t file very many section 249 charges. Why? Well, as I’ve written elsewhere, civil-rights crimes can be very difficult to prove. The failure to earn convictions on the section 249 count as against the Jenkins defendants who chose to go to trial underscores the difficulty in proving, beyond a reasonable doubt, the specific intent necessary to establish a hate-crime offense. My sense is that federal prosecutors, aware of these difficulties, properly are reserving section 249 charges for relatively clear-cut cases. (Indeed, section 249 cases are so rare that the DOJ’s press releases for two different cases (Thompson and Hatch) both identified the case as the first to be brought under the Shepard-Byrd Act. Oops.) I have not read anything about the Zimmerman case that would lead me to believe that the section 249 case against him is comparably obvious, but again, I have not been following the case closely.

Turning the page, some of you who recall the federal prosecutions of the police officers involved in the Rodney King beating may wonder about the applicability of those crimes to the Zimmerman case. These offenses, 18 U.S.C. §§ 241 and 242, don’t apply to the Zimmerman matter. The first of these crimes is a conspiracy offense, and you can’t have a one-person conspiracy. Per the Department of Justice’s website, the second of these offenses “makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States,” But Zimmerman wasn’t acting under “color of law” insofar as I can tell, so I don’t think that crime would fit, either.

* An earlier version of this post mistakenly referred to this subdivision as section 249(b).


Green v. Pro Football Inc. d/b/a Washington Redskins et al.

As some of you may have heard, former National Football League linebacker Barrett Green recently filed a lawsuit against the Washington Redskins, their former defensive coach Gregg Williams, and former Redskins tight end Robert Royal.

In this lawsuit, Green brings a battery claim against Royal, a resulting vicarious liability claim against the Redskins, and negligence claims against all three defendants. These claims derive from a career-ending knee injury that Green, then a member of the New York Giants, suffered as a result of a hit by Royal in a 2004 game.

According to the complaint, Williams “instructed and/or encouraged” Royal to injure Green as part of an “bounty” program, whereby “Defendant Redskin players were encouraged to intentionally injure opponents so that they would be forced to leave the game.”

I haven’t seen a copy of the complaint elsewhere, so I thought I’d post it here. It’s an interesting case. Though I am certainly no expert in Maryland law, I tend to agree with Professor Gabe Feldman’s analysis that Green will have a tough row to hoe with this lawsuit, due to statute of limitations and causation issues with his claims.

Goldman Sachs: Always a Step Ahead (1963)

I recently visited the John F. Kennedy Library and Archives in Boston. The facility has the best view of any archives I’ve visited — a panoramic vista of Boston Harbor, as observed through the upper reaches of a four-story glass wall.

I went to Boston to do some research on civil-rights prosecutions during the Kennedy Administration. I’m interested in why prosecutors do and don’t bring prosecutions that have ample factual support, but stand a high risk of jury or judicial nullification. Civil rights prosecutions back in the 1960s implicated this sort of dynamic, leading me to riffle through the papers of some Department of Justice attorneys.

Of whom Burke Marshall was one. I’ll write a longer post on Marshall some other day. It suffices here to say that Marshall had a truly fascinating career: head of the Department of Justice’s Civil Rights Division under Robert F. and John F. Kennedy; general counsel of IBM back when IBM was IBM; longtime Yale Law School professor. In any event, while going through the Marshall papers, I came across an interesting memorandum, which provides the basis for this post.

This memo dates from June 20, 1963, nine days after President Kennedy gave an important speech on civil rights. The memo was written William vanden Heuvel — Bobby Kennedy’s assistant at the Department of Justice. In it, vandel Heuvel encourages his boss to meet with leaders of the New York bar and encourage them to hire more any even just one African-American attorney. Vanden Heuvel observes that the white-shoe law firms of the era had all the racial sensitivity of a 1940s Warner Brothers cartoon, noting that among high-end Wall Street legal practices, “There is no law firm that has a negro law associate, much less a negro partner.”

He then holds up a role model:

A breakthrough in the legal, financial and insurance worlds of Wall Street would be significant, at least as the New York City employment situation is affected. There is a disposition among Wall Street leaders to cooperate in this crisis. For example, Goldman Sachs hired its first negro employee (an assistant librarian) yesterday. This was  a deliberate effort to indicating [sic] an urgent appreciation of the President’s speech.

So, what can we learn from this, other than the unsurprising fact that Wall Street law firms were glacially slow at integration? Well, call me cynical, but one take is that Goldman Sachs has been politically adroit for at least a full half-century now.

Changing One’s Mind

As the years pass, even absent shifts in binding precedent it’s altogether possible that some judges, tasked with evaluating state laws that outlaw gay marriage, simply may change their mind and find a prohibition on the practice unconstitutional, after previously upholding such a ban.

If these judges need rhetorical support for such a volte-face, I recently came across this nice passage by Justice Robert Jackson (did he ever write any other kind?), defending his change of position on a point before the Court:

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: ‘My own error, however, can furnish no ground for its being adopted by this Court * * *.’ United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—‘ Ignorance, sir, ignorance.’ But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: ‘I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.’ If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

McGrath v. Kristensen, 340 U.S. 162, 177-78 (1950) (Jackson, J., concurring).

A quick Westlaw search reveals 15 judicial citations to this passage over the intervening 63 years, indicating that the nation’s judiciary as a whole admits error oh, once every four years or so.


My wife and I recently returned from a trip to southern Tuscany. We stayed three days and nights in Pienza, a hill town in south-central Tuscany’s Val d’Orcia region. We then spent one evening in Siena–a town we’ve been to before, and like very much.

We used Pienza as a base for several hiking trips across the countryside, with neighboring hill towns (Montepulciano, San Quirico d’Orcia) as our destinations. I took a few photographs on these walks, and have posted some of these pictures below.

View from Pienza, toward Montecchiello

Road to San Quirico d’Orcia

Country Road, Tuscany

Vitaleta Chapel, Val d’Orcia

Pienza and Countryside, Late Afternoon

Perhaps the best view of all, however, came in Siena, after I stopped by Pasticceria Bini for some of their amazing cream puffs, cookies, and eclairs. Here’s the neat, pretty, and soon-emptied package that they gave me.

Photographs of Segregated Southern Bus Facilities, circa 1960

On a recent trip to the National Archives, while researching something quite different, I came across a statement filed by the Department of Justice in connection with a petition to the Interstate Commerce Commission. The petition, filed in 1960 or thereabouts, related to segregation in Southern bus facilities; the DOJ’s statement in support of ICC rulemaking included, as an appendix, photographs that government employees had taken of some of the bus stations at issue.

I thought that some of the photographs were interesting, in a Walker Evans-y way, and I hadn’t seen them elsewhere. So I took my own pictures of the pictures, which appear (along with their captions, as found in the DOJ’s statement) below. The pictures below are copies of copies of copies, so my apologies for the image quality. (And my apologies for the captions, which are of course a product of the times.)

Greyhound Bus Station, Selma, Alabama White Restaurant

Greyhound Bus Station, Selma, Alabama Colored Lunch Room

Continental Trailways Bus Center, Little Rock, Arkansas

Trailways Bus Station, St. Petersburg, Florida

Trailways Bus [Station], Tampa Florida

Greyhound Bus Terminal, Middlesboro, Kentucky

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John Roberts on Computer Crime Legislation (1984)

While continuing to procrastinate, I decided that today would represent a terrific day to clean up my office and recycle some old paperwork. While looking through these stacks, I came across this, a memorandum written by Chief Justice John Roberts back when he was a young White House attorney. Like other Roberts memos that I’ve posted before (here, here, and here), I obtained this document on a visit to the Reagan Library last year. For whatever reason, when posting the other documents, I forgot to include this one.

This April 1984 memo addresses a Department of Justice proposal to add new computer crimes to the federal code. I don’t know the precise terms of the proposal, but to my untrained eye, its (loosely described) provisions resemble certain of those found in the Computer Fraud and Abuse Act, a 1980s statute that recently has prompted much controversy.

The memorandum is short and to the point. It contains one nice rhetorical flourish, where Roberts observes that the proposal’s forfeiture provision “is designed to deter the junior high school computer whizzes who break into the Los Alamos computers and do such things as change the targets on all our nuclear missles [sic] to various points in New Jersey.”

If the DOJ’s proposal in fact mirrored the controversial terms of today’s CFAA, I suppose one could infer from Roberts’ lack of objections to the proposal a similar absence of unease with the CFAA’s broad scope. But I am not a CFAA expert, or even particularly familiar with its specific terms; thus I don’t know if the DOJ proposal and the statute are congruent in this respect. Plus, 1984 was a long time ago, and perhaps Roberts’s views have shifted over the years.

“Not all analogies are created equal,” and Florida v. Jardines

The other day, I read an interesting article just published in the journal Neuropsychologia, titled “Not all analogies are created equal: Associative and categorical analogy processing following brain damage.” As a matter of course, this article made me think of the United States Supreme Court’s recent decision in Florida v. Jardines, a “dog sniff” case.

In Florida v. Jardines, the Court (by a 5-4 margin) held that police use of a trained scent dog at the front door of a set-back, single-family residence amounted to a Fourth Amendment “search.” In reaching this conclusion, Justice Scalia’s majority opinion distinguished the circumstances from a situation in which a police officer makes a similar front-door approach as a prelude to a so-called “knock and talk.” To the Jardines majority, homeowners have customarily given their implied consent to the latter type of police contact, such that it is not a “search.” No such consent has been given to the dog-sniff technique, the court reasoned, so it is a “search.”

Fair enough, though I can’t wait for the case that’ll arise once technology gets to the point where police officers can take sense-enhancing pills. As I said, the Jardines case came to mind when I read the article on analogies. The abstract for this article provides as follows (with one technical sentence omitted):

Current research on analogy processing assumes that different conceptual relations are treated similarly. However, just as words and concepts are related in distinct ways, different kinds of analogies may employ distinct types of relationships. An important distinction in how words are related is the difference between associative (dog–bone) and categorical (dog–cat) relations. To test the hypothesis that analogical mapping of different types of relations would have different neural instantiations, we tested patients with left and right hemisphere lesions on their ability to understand two types of analogies, ones expressing an associative relationship and others expressing a categorical relationship. . . . We argue that categorical relations additionally rely on the right hemisphere because they are more difficult, abstract, and fragile, and contain more distant relationships.

As the abstract indicates, the basic point of the article is that “categorical” analogies are more difficult to draw than “associative” analogies are. In making this argument, the authors assert:

the relationships or mappings between words in categorical analogies are qualitatively different than those in associative analogies. Associative relations between two words are
typically based on actual events (a fish swimming in the sea) that can be directly experienced. The two items co-occur in time and space. In this sense such relationships are concrete. Categorical relationships, even those using concrete words, are less concrete than associative ones. They are feature-based, and not all features are equally important in establishing a relationship. Boxes and bottles are both containers, but some features must be ignored (shape, material) while others attended to (function of containment) in order for a relationship to be established.

Anyway, this article’s thesis would seem to have some application to legal combat, in which parties seek to analogize the present case to other matters in which courts have  reached favorable rulings. If the authors are correct, their work suggests that parties often would do well to brainstorm and stress associative analogies, instead of relying exclusively on categorical likenesses. This point would seem to hold particularly true in situations where the disposition will depend in some measure on custom and tradition, as often is the case in Fourth Amendment “was there a search” matters.

For example,the article got me to thinking about how the result in Jardines hinged upon the absence of a good associative analogy (dog sniff-porch) from the prosecution’s standpoint. Both sides made categorical analogies in Jardines, with the defense likening dogs to heat imagers (per Kyllo) and front-porch use of binoculars, and the prosecution analogizing dog sniffs outside a house to dog sniffs outside a car (Caballes) or luggage at an airport (Place). But Justices Scalia’s analysis did not dwell on favorable categorical analogies (though Justice Kagan’s concurring opinion did), and honed instead on whether or not homeowners grant implied consent to law enforcement dog-sniffs — an analysis predicated upon the lack of a ready associative analogy.

As a matter of course, there’s still the old lawyers’ level-of-generality issue to think about in this context. After all, the government prevailed in the overflight cases of the 1980s even though there was only a “look down-airplane” analogy to rely upon, as opposed to “police officer look down-airplane.” But that’s a nuance, and goodness knows no one reads this blog for those sorts of fine points.

I Guess You Had to Be There, But Still Better than the “Harlem Shake”: “The Great Nine” (1890)

From the The New York Morning Journal, February 5, 1890:*

“The Great Nine.”

A Supreme Court song and dance which should have been performed yesterday.

We are the dread judicial nine, who rank high over all,                                                       We sit upon a narrow bench in a little stuffy hall;                                                                   We tinker Constitutions and decisions we reverse,                                                               And when a muddle’s very bad we often make it worse.

For (chorus)

We are the Nine,                                                                                                                   The terrible Nine,                                                                                                        (Privately fond of good dinners and wine;)                                                                         But, dressed in our gowns,                                                                                                     And our most solemn frowns,                                                                                                  Our dignity really is adamantine!

(Here Mr. Justice Harlan danceth a Kentucky reel.)

We are the nine upon whose law the gravest things depend;                                        Some suits, if we were not at hand, would never reach an end;                                      With a whisper we can make the biggest corporations howl;                                            And we fear neither angered House, nor Senatorial scowl;


We are the Nine,                                                                                                                      The eloquent Nine,                                                                                                                 Stronger than Congressmen tho’ they combine;                                                                      Decked in our gowns,                                                                                                         And our mightiest frowns,                                                                                                     Our dignity really is adamantine!

(Here the Chief-Justice performeth a Parisian pirouette.)

Yes, we’re the Nine above whose word no President can go,                                                It really makes us dizzy to think how much we know;                                                           But at times we like amusement, so we take of cards in a deck;                                      And play poker on the Bench while we sample extra sec


We are the Nine,                                                                                                                 The frolicsome Nine,                                                                                                    Merriest when we’re invited to dine;                                                                                     But draped in our gowns,                                                                                                    And stateliest frowns,                                                                                                          Our dignity really is adamantine!

(Here Mr. Justice Field snatcheth a Caifornia fandango.)

Second Chorus.

Oh, yes!                                                                                                                              Our dignity really is adamantine                                                                                Rhadamantine.                                                                                                              McAdamantine!

(Here Mr. Justice Lamar indulgeth in a Mississippi hoe-down, after which all join in a grand walk-around.)

 * I haven’t pulled the microfilm of this newspaper. The song comes from what purports to be a reprint of February 5, 1890 edition of the Morning Journal, as found within William Rehnquist’s papers at the Hoover Institution.

March 30, 2013 UPDATE: Ted Frank has raised the possibility of this song being a modern satire, merely imitating an 1890s routine. Obviously, more research must be done to verify the authenticity of this song, which research will have the ancillary benefit of providing more fodder for future columns. Any feedback from persons with knowledge would be appreciated, and attributed. As matters stand, the evidence still supports the authenticity of the song, but if the facts change, additional reports will assuredly follow.