Pop Culture at the Supreme Court

In a bit of levity last week, Justice Kagan quoted Dr. Suess in Yates v. United States. In her dissent she wrote: “A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).” The opinion was well timed considering that March 2 is Dr. Seuss’s birthday. (I didn’t know until my kids came home and told me that I forgot to get them Dr. Seuss costumes. Apparently this is something schools do these days.) Anyhow, it got me wondering about other times the United States Supreme Court had dropped its habitual formality and made reference to popular culture. The following is an incomplete list. Feel free to leave a comment with an addition.

1. Lone Ranger

In his dissent in Kyles v. Whitley, Justice Scalia used the Lone Ranger as an example of why seeing a suspect’s face should be enough to identify him or her. “[I]t is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer's face?’ will be laughed out of the courtroom.”

2. Superman

In Bertman v. J.A. Kirsch Co., Justice Black dissented because he thought the majority had unrealistic expectations about an attorney’s ability to know that the State had filed a last-minute appeal in his client’s case.

“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed—even in the closing hours of the sixtieth day. I do not doubt that had Bertman's counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk's office to see whether the Government would file a notice of appeal. But Bertman's counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”

3. Cinderella, Snow White, and Lord of the Flies

Most of the pop culture references come in dissents where the justices write in the first-person and generally have a bit more liberty. In Brown v. Entertainment Merchants Ass’n, however, the majority used the Brothers Grimm, The Odyssey, Dante’s Inferno, and the Lord of the Flies to illustrate how much violent imagery we present to children.

"Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

"High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187-189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).”

4. Casablanca

In Rapanos v. United States, a case about the Clean Water Act, the Supreme Court dropped a footnote about Casablanca.

“We are indebted to [the appeals] court for a famous exchange, from the movie Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters:

‘“Captain Renault [Claude Rains]: ‘What in heaven's name brought you to Casablanca?’

‘“Rick [Humphrey Bogart]: ‘My health. I came to Casablanca for the waters.’

‘“Captain Renault: ‘The waters? What waters? We're in the desert.’

‘“Rick: ‘I was misinformed.”’ 408 F.3d, at 1117.”

Utah's Powerful Establishment Clause

The Utah Supreme Court decided an interesting case earlier this month about religious expression under the Utah Constitution. The full story behind Summum v. Pleasant Grove City, 2015 UT 31, actually starts with Cecil B. DeMille’s epic film The Ten Commandments. To promote the 1956 film, DeMille teamed up the Fraternal Order of the Eagles and coordinated the placement of Ten Commandments monuments in public parks across America. Years after the film promotion was done, the Eagles continued to give out Ten Commandments monuments as a way to combat juvenile delinquency. See 129 S.Ct. 1125, 1140 (2009). It makes sense because nothing keeps the kids off drugs like a monument.

In 1971, the local chapter of the Eagles donated a Ten Commandments monument to Pleasant Grove City. ¶ 2. Four years later, a new religion, Summum, was born in Utah—and by “born” I mean incorporated as a 501(c)(3) tax-exempt organization. Summum thinks that the Ten Commandments are a “useful guide,” but that their Seven Aphorisms are the real deal. So they wanted to put a Seven Aphorisms monument next to the Ten Commandments monument in Pleasant Grove. Pleasant Grove said no way. They went back and forth for a while and eventually went to court. The case made its way to the U.S. Supreme Court in 2009. In Pleasant Grove v. Summum, 129 S.Ct. 1125 (2009), Summum argued that because Pleasant Grove had accepted the Ten Commandments monument and rejected theirs, Pleasant Grove had restricted their free speech in violation of the federal constitution. The U.S. Supreme Court found that Pleasant Grove had not violated Summum’s right to free speech because the Ten Commandments monument was government speech, not a public forum. 1138. The U.S. Supreme Court didn’t decide whether the Ten Commandments monument itself violated the federal establishment clause, but Justices Scalia and Thomas argued in their concurrence that it did not. 1139-1140.

But Summum wasn’t done. They decided to make another effort at getting the Seven Aphorisms in the Pleasant Grove park. (It’s funny that Pleasant Grove, population 35,000, has become the focus of this religious expression debate. I guess if you can make it in Pleasant Grove, you can make it anywhere.) Summum brought a state claim under the Utah Constitution. Utah’s establishment clause is much more specific than the federal establishment clause. It reads, in part: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.” Utah Const. art. 1, sec. 4.

The Utah Supreme Court declined to decide whether the Ten Commandments monument violated the Utah Constitution. ¶ 1. Instead, it focused on Summum’s request for adding a Seven Aphorisms monument. The Utah Supreme Court held:

"Assuming that the Ten Commandments monument amounts to religious exercise or instruction, requiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views, including adherence to one of multiple religious denominations, agnosticism, or atheism. Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property among the spectrum of religious views held by Utah citizens. And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable." ¶ 11.

So if two monuments would fail to neutrally reflect the pluralism of Pleasant Grove and therefore violate the Utah Constitution, then wouldn’t one monument be even worse? The question that the Utah Supreme Court left intentionally unanswered is, does Utah’s establishment clause go further than the federal establishment clause in prohibiting religious monuments in public parks? It looks like it does. Pleasant Grove’s Ten Commandments monument might violate the Utah Constitution even though it might not violate the U.S. Constitution. It's an interesting question, but one that the Utah Supreme Court will have to answer on a different day. For now, Summum can’t have its monument in the Pleasant Grove park.