Notice & Comment

D.C. Circuit Review – Reviewed: Culture Rot … Or “The Dusty SCOTUS Pop-Culture References of Yore”

Last week, I praised Justice Elena Kagan for her sharp questions at oral argument. This week, however, her dissent in Lockhart v. United States prompts a friendly concern: Should there be pop culture references in Supreme Court opinions? Although such references are fun today, I fear they will confuse lawyers tomorrow. Indeed, just as the Supreme Court was right to worry about “link rot” (i.e., links to materials that may one day not be available), perhaps it should also worry about “culture rot” (i.e., references that will not stand the test of time).*

In particular, these sentences from Lockhart jump out: “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.”

Justice Kagan’s dissent is worth reading. After all, she is an unusually talented writer who works hard at her craft. Even so, in not many years, her reference to Zoolander will puzzle readers. (Indeed, if box office numbers are any indication, it may already puzzle readers!) And if readers will be puzzled in five or ten years, they surely will be even more puzzled in 50 or 100 years. We can hope that future lawyers will be able to tell from context that “the latest Zoolander” was a lesser film, circa 2016. But they also will mutter to themselves: “What’s a ‘Zoolander’?”

To be sure, Star Wars, like The Wizard of Oz, probably will continue to have cultural purchase in the future. But then again, sometimes even a no-one-will-ever-forget-this-cultural event, in fact, is forgotten, especially after a long period of time. In 1789, who would have thought that Americans would ever stop appreciating the finer points of Addison’s Cato?

Supreme Court opinions should last for generations. Expressions, references, or anything else that may confuse future lawyers should be avoided unless absolutely necessary. It already is hard enough to understand old cases (and some modern cases for that matter); imagine how much more challenging it would be for today’s lawyers to parse, for example, Ex Parte Merryman, if the opinion included stray references to, say, “Solon Shingle,” a popular stage production of the period? (Ex Parte Merryman, of course, was not a Supreme Court opinion, but it was authored by a Chief Justice of the United States who happened to look like Severus Snape.)

Circuit courts, to be sure, arguably may have a bit more flexibility to invoke pop culture and colloquialisms. Very few people, after all, will read their work next century. And on occasion, I suppose, such references may help signal to contemporary readers that an opinion is particularly notable. But this signaling power, if ever used, should be used sparingly, both by circuit courts and especially by the Supreme Court. Everything can’t be “pure applesauce.”

Noah Feldman suggests that the rise of these opinions may be driven by the internet age—in particular, by our contemporary taste for “a tone of irreverent observation.” He writes, for instance, that Justice Scalia’s opinions “got funnier and more pointed because he was competing for attention,” and that Justice Kagan “represents a fuller realization of the influence of the contemporary court literary style on the justices themselves,” as her “Lockhart opinion could almost have been a post on Scotusblog or a column in Slate or Bloomberg View.”

Feldman is right. But yet I worry about the shelf life of these opinions. No one will reread this blog post in 100 days, much less 100 years. But lawyers may still be reading Lockhart in 2116.

In any event, as far as I can tell, the D.C. Circuit this week did not include any allusions to popular culture. And there are a lot of opinions. Here we go:

Independence Institute v. FEC: The Independence Institute is a 501(c)(3) charitable organization that wanted to advertise regarding federal sentencing reform. The ad would have encouraged citizens of Colorado to contact their U.S. senators. But it was an election cycle, making the ad an “electioneering communication,” which means the Institute would have had to disclose its donors. As applied to these facts, would forced disclosure violate the First Amendment? The Institute asked for a three-judge district court to decide the question. The district court declined to do so, however, because it concluded that the Institute’s claim was “unavailing” under McConnell v. FEC and Citizens United v. FEC. Judge Kavanaugh, joined by Judge Griffith, held that the Institute’s challenge was different enough from those cases to justify a three-judge court because the argument is not “essentially fictitious, wholly insubstantial, obviously frivolous and obviously without merit.” Judge Wilkins dissented because, in his view, the Institute’s reading of Buckley v. Valeo was now foreclosed. (Speaking of references, Judge Kavanaugh’s opinion cites the scholarship of Richard Re, his former law clerk and a smart fellow.)

FEC v. Craig for U.S. Senate: Former Idaho Senator Larry E. Craig challenged an FEC order requiring him to pay nearly $200,000 to the U.S. Treasury for using campaign funds to cover legal fees (as well as $45,000 in civil penalties). Long story short, in 2007, Craig was arrested, charged, and entered a plea deal for an “incident” that occurred in a Minnesota airport bathroom. After all of this became public, Craig sought to withdraw his plea and announced that he would be stepping down from the Senate. He later changed his mind and opted to finish out his term. Based on his attorney’s advice, Craig used money from his campaign fund to pay for fees associated with withdrawing his plea and the like. The FEC investigated the expenditures and concluded that they violated federal law because they were for “personal use.” Judge Garland, joined by Judges Griffith and Sentelle, rejected each of Craig’s arguments. (There is a lot here for election lawyers.)

American Council of Life Insurers v. District of Columbia Health Benefit Exchange Authority: This case concerns a challenge to an assessment charged by the District of Columbia Health Benefit Exchange Authority. When the exchange first opened, it did not have enough funds to operate, so D.C. charged an assessment “on all insurance policies above a certain premium threshold”—even for policies that insurers are not allowed to sell on the exchange. The American Council of Life Insurers challenged this charge. On appeal, the District of Columbia argued that the charge was a tax rather than a fee and so any challenges must brought in the Tax Division of the D.C. Superior Court. Judge Williams, joined by Judges Tatel and Pillard, agreed: “[T]he hallmark of a fee is at least a rough match between the sum paid and the (broadly defined) benefit provided, as seen from the payers’ perspective.” Because many of the assessments came from policies not traded on the exchange, the court concluded that there was not a match between the benefit and the burden of the charge and that “such redistribution of resources marks the charge as a tax.” In other words, not only did the plaintiffs receive “no immediate benefit” from the exchange, but because they received no such benefit, they could not challenge the assessment outside of a specialty court. I wouldn’t be surprised to see a cert petition out of this docket (Paul Clement argued the case).

Defenders of Wildlife v. Jewell: In 2012, the Fish and Wildlife Service withdrew its proposed listing of the “dunes sagebrush lizard” as endangered in response to Texas’ adoption of a voluntary conservation program in the lizard’s territory. In considering whether Texas’ new conservation plan would be sufficient to protect the lizard, the FWS used its own “Policy for Evaluation of Conservation Efforts when Making Listing Decisions.” Environmental groups challenged the determination that Texas’ plan was sufficient as arbitrary and capricious. On appeal, Judge Rogers, joined by Judges Henderson and Kavanaugh, held that any argument that the Policy does not comport with the Endangered Species Act was waived. As to application of the Policy, the panel upheld the FWS decision.

United States v. Hallford: This case involves the U.S. Secret Service, the “Million Mask March” (“which turned out to be neither a march nor a million”), and “loaded firearms, an incendiary device, a bullet-proof vest, military grade ammunition and other objects.” Mr. Hallford, it seems, traveled to Washington, D.C. to attend the “Million Mask March,” and while wearing a Guy Fawkes mask, taunted Secret Service and urged them to shoot him. Eventually his bizarre behavior landed him in a hospital for a mental health evaluation. Secret Service agents questioned Hallford (without reading him his Miranda rights). Hallford confessed that he had firearms in his vehicle, which was parked at the National Mall, and that there was other material in his car that “would look bad.” After his indictment, Hallford moved to suppress. Although the district court agreed with him, Judge Randolph—writing for himself and Judge Brown—largely reversed. Judge Wilkins dissented in part, urging greater deference for the trial court. (Judge Randolph’s citations to Judge Friendly’s fruit-of-the-poisonous-tree analysis are worth nothing. Randolph, of course, clerked for Friendly. Those interested in appellate procedure should also check out footnote 4.)

Sierra Club de Puerto Rico v. EPA: This case involves the permit process for and regulation of lead incinerator emissions. (Try to work a pop culture reference into that sentence.) EPA issued a permit to Energy Answers to build a waste incinerator in Puerto Rico. Sierra Club is unhappy with that decision. Alas, Sierra Club did not bring its challenge quickly enough. Judge Wilkins, joined by Judges Edwards and Sentelle, dismissed Sierra Club’s petition as time-barred.

Keepseagle v. Vilsack: In 2010 the Department of Agriculture and a class of Native American farmers settled a class action discrimination lawsuit. The settlement limited the situations in which the district court would retain jurisdiction. The question here is whether someone whose claim was denied as part of the settlement program could intervene in the underlying litigation. Judge Wilkins, writing for himself and Judges Brown and Pillard, concluded there was no subject matter jurisdiction to hear the claim.

United States v. McGill: This per curiam opinion (for Judges Srinivasan, Millett, and Williams) is 178 pages. It involves murder, conspiracy, “tampering with a witness or informant by killing,” and many other crimes. The point of my weekly posts is to review “admin law” opinions; this is not that. If there are pop culture references in this opinion, I missed them—“See Parts XV, XX, XXII-XXV, XXVIII, XXX, infra” doesn’t count. I do enjoy this line, however: “Appellate judges are not bloodhounds who need only be put on the scent to go hunting for errors on their own.” We had pigs and truffles policing forfeiture before; now we also have bloodhounds. I admit, I gave this opinion a very quick skim.

So there you have it: a week’s worth of D.C. Circuit opinions with, it appears, nary a hint of pop culture. Though, on reflection, I don’t think anyone would have begrudged Judge Randolph a “V for Vendetta” reference. When deciding a case literally involving a Guy Fawkes mask, explosives, and the Fifth of November, should we really care if mentioning that forgettable film, streamable online for a dollar in 2016, would leave lawyers in, say, 2066, scratching their heads?

* This post’s title comes from Eli Savit via Twitter. When I started blogging last August, I decided to also take a stab at Twitter. My thought was to try blogging and Twitter for a year to see what I think. I’m over six months into the experiment.

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