Judicial Follies

by Frank Zotter Jr
Ukiah Daily Journal
January 19, 2009

Ain't Got Nothin' Else to Write About

Under the heading of "Best News for Someone who Writes about Oddball Court Opinions" is a story that appeared in no less than the New York Times a few months back: someone else out there is paying attention. Back in June, just as the U.S. Supreme Court was finishing its 2007-2008 term, Adam Liptak of the Times, who inherited the Supreme Court "beat" from the estimable Linda Greenhouse, provided a short piece entitled, "The Chief Justice, Dylan, and the Disappearing Double Negative."

Which just goes to show that, whatever else one might think about the folks at the New York Times, they still need to work on their headlines.

The article explained how, near the end of the term, Chief Justice John Roberts had written a dissent in a case that permitted a lawsuit between two payphone companies to go forward. In a morass of otherwise unintelligible legal discussion, Roberts summarized why he didn't think the one company had sufficient "standing" -- a "stake" in the outcome -- for the case to proceed: "The absence of any right to the substantive recovery," Roberts wrote, "means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. When you got nothing, you got nothing to lose.' Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)."

Roberts is no newcomer to such eccentric references, of course. As we noted in this space just a few weeks ago, he's the same judge who got in touch with his inner Raymond Chandler with a terse, three-paragraph introduction to another dissent last year that included the description of a crime-ridden Philadelphia neighborhood as "Tough as a three dollar steak."

Liptak's article addressed two topics. He grumbled that while it may well be the first time that a rock lyric was used in a Supreme Court opinion, Roberts nevertheless misquoted Dylan, who actually wrote, "When you ain't got nothing, you got nothing to lose." Roberts apparently preferred to follow the rules of grammar and not the poetic license of the song, the better to underscore his logic, i.e., "you got nothing = you got nothing to lose." As your seventh grade grammar teacher might have pointed out, if you "ain't got nothing," then what you're really saying is that you "do have something."

Is everyone following this so far?

Well, anyway, Liptak also relied heavily on law professor Alex B. Long, whom Liptak described as "perhaps he nation's leading authority on the citation of popular music in judicial opinions." Yeah, Adam, like there's more than one of them.

Prof. Long apparently qualifies for this honorific on the strength of an article he published in a legal journal back in 2007 that demonstrated Roberts is in good company: while he might be the first Supreme Court justice to quote rock music, there are at least 25 other citations of Bob Dylan in lower court cases. The Times even provided a helpful chart, emblazoned with a picture of hometown favorites Paul Simon and Art Garfunkel (who came in second with 12 citations), listing the top seven rock lyric citees(?). According to Prof. Long, the next five artists in descending order were Bruce Springsteen (5 references), the Rolling Stones (4), the Beatles (3), the Grateful Dead (2) and Joni Mitchell (1).

Or maybe Joni is tied for seventh with everyone else.

Of course, in this space we, too, have chronicled some of the more unusual refuges to which judges have retreated for "legal authority" -- including folk singer Malvina Reynolds' song "Little Boxes" (which provided legal support for a land use opinion in 1981), the poetry of Ogden Nash (cited in a 1980 California Supreme Court opinion), an eighth grade arithmetic book (used by a federal judge used to show an attorney's mathematical calculations were in error), the names of a dozen or more brands of detergent (which another federal judge worked into his prose in a case involving chemical regulation), film critic Leonard Maltin's compendium of movie reviews ("cited" by Judge Alex Kozinksi as a hint that he had worked 200 movie titles into the text of a case) and even a line spoken by Captain James T. Kirk in "Star Trek IV" (quoted in a California opinion from 2000 in a dispute over environmental law).

It is heartening, nevertheless, to know that the New York Times considers such matters weighty enough for their august pages.

And to know that Chief Justice Roberts, at least, will be a good source of material for years to come.