This week the justices decided six more cases including those against Twitter and Google for allegedly aiding and abetting ISIS terrorists, and the copyright dispute over Andy Warhol's images of Prince. Zack interviews Judge Jennifer Perkins of the Arizona Arizona Court of Appeals. And, inspired by some serious judicial sass from Justice Kagan directed at Justice Sotomayor, GianCarlo selects other famous and funny cases featuring the justices at their sassiest.
GianCarlo Canaparo: I'm GianCarlo Canaparo.
Zack Smith: I'm Zack Smith.
Canaparo: And welcome to SCOTUS 101, where we break down what's happening at the Supreme Court, what the justices are up to.
Smith: And other things related to our favorite branch of government.
Canaparo: What? Welcome back to SCOTUS 101.
Smith: It's been another busy week at the court, so full steam ahead and I'll kick things off with the orders. We had several new cases that the court agreed to hear for next term. One will consider a challenge to congressional district maps that the plaintiff alleges were racially gerrymandered. Another will decide if individual members of Congress have standing to sue agencies to force them to turn over documents that the members have asked for. And two, will dive into the vague maraz that is the Armed Career Criminal Act.
Canaparo: Turning to opinions, another blockbuster week with six of them all start with Twitter and Google. This was a unanimous decision. The Twitter case was by Justice Thomas where the court held that plaintiffs failed to state a claim that Twitter, Facebook, and Google aided and abetted ISIS, the terrorist group by algorithmically promoting their videos. ISIS uploaded videos to the social media platforms and the family of one of ISIS's victims sued those companies under the Justice Against Sponsors of Terrorism Act. That act imposes liability on anyone who aids and OB bets terrorism, but it doesn't define that term. The Supreme Court held that the term has to be given its common law meaning, which is knowing and substantial assistance.
The court held that knowing and substantial assistance can't be given to a transcendent enterprise, but has to be given with respect to a particular terrorist act. The court held here that the plaintiffs adequately pleaded aiding and abetting by alleging that the social media companies knew that their algorithms were promoting their videos, but that the plaintiffs failed to allege that the companies aided and abetted the particular attack that killed the victim whose family sued. In the companion case to this one Google, the court simply remanded that decision to the court below in light of its decision in Twitter.
Smith: Very interesting. Next up we have Andy Warhol Foundation for Visual Arts versus Goldsmith. Now GC, how often can you say that multiple pictures of Prince are the artists formerly known as Prince, made their way into a Supreme Court opinion? Not often I'd imagine, but they did here this was a seven to two decision by Justice Sotomayor where she was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Jackson to reject the Andy Warhol Foundation's fair use defense in a dispute between it and photographer Lynn Goldsmith involving a picture she took of Prince. In 1984 Goldsmith granted Vanity Fair a one-time use permission to use a photo of Prince to illustrate a story about him, but Vanity Fare hired Andy Warhol to create a silk screen. Based on that photograph which ran in the story. Warhol though actually created 15 additional works from Goldsmith's Prince picture and later licensed one of those additional prints for a different story about Prince. One of the things I learned from this case who knew Prince was such a hot topic for magazine articles.
Canaparo: Little before my time.
Smith: Well go listen to Purple Rain GC. Anyway, Goldsmith saw this latter story and informed the Andy Warhol Foundation that this use of her picture infringed on her copyright. The foundation disagreed, so Goldsmith sued. While the district court ruled in the Foundation's favor finding fair use, the Second Circuit disagreed and the Supreme Court affirmed the Second Circuit. There are four statutory factors to determine whether use of a copyrighted work constitutes fair use and in its opinion, the court focused on the first of these factors, which considered the reasons for and the nature of the secondary use of the original work. Here the court held that using the same image to illustrate other magazine stories about Prince is not only substantially the same purpose as the original, but that the copying use is of a commercial nature.
Thus, this factor favored Goldsmith and the Foundation could not serve a successful fair use defense. Gorsuch joined by Justice Jackson concurred to further explore this narrow question of statutory interpretation. And Justice Kagan joined by Chief Justice Roberts dissented. She said that Warhol's eye-popping silk screen of Prince is based on but dramatically alters an existing photograph. She also argued that the majority's narrow approach "Ill serves copyrights core purpose of fostering creativity." Now, there is one other interesting thing to note about Kagan's dissent. It's garnered a lot of attention, and it's a footnote she dropped in her opinion seemingly taking a shot at Justice Sotomayor who authored the majority opinion. I think the footnote is interesting and it's worth reading in whole. So here it is. Listen up and see what you think. This is what Justice Kagan had to say. She said, "One preliminary note before beginning in earnest as readers are by now aware, the majority opinion is trained on this dissent in a way, majority opinion seldom are. Maybe that makes the majority opinion self-refuting.
After all, a dissent with no theory and no reason is not one usually thought to merit pages of commentary and fists of comeback footnotes. In any event, all not attempt to rebut point for point the majority's buried accusations. Instead, I'll mainly rest on my original submission. I'll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majorities, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to Ipse Dixit. With those two recommendations, I'll take my chances on reader's good judgment." That is spicy talk by Supreme Court terms.
Canaparo: Oh, that, I mean, that's really spicy. Kagan can be spicy, but that is, I've never seen something quite so sharp and so personal, especially surprising that she would make such an attack on Sotomayor who is usually her ideological ally.
Smith: Yeah, it really shows the depth of disagreement that this case must have brought up between them.
Canaparo: Yeah. Well that brings us to the less spicy, but still no less fascinating case of Polselli versus the IRS. This was a unanimous decision by the Chief justice where the court held that the IRS can issue summonses to people without notice if it's doing so in the course of pursuing a collection action against someone else. So, here the IRS was trying to recover money from a delinquent taxpayer and issued summonses to his banks, asking not only for his information but the information of related third parties. The banks retorted, "You can't do that to us without giving us notice under a particular statute because we aren't the people you're actually trying to get money from." The Supreme Court said under the statute, it doesn't matter. All that matters is that the IRS is trying to collect money from someone. Justice Jackson joined by Justice Gorsuch concurred emphasizing that the courts should be very careful not to interpret this decision as a dramatic expansion of the rule that notice is usually required.
And one more case that I'll mention, Amgen versus Sanofi. This was a unanimous decision by Justice Gorsuch where the court narrowed the scope of a patent law requirement called Enablement. Now, Enablement is a requirement that patents contain enough information to enable someone with expertise in the field to be able to make use of the invention. In this case, the patents that issue with drug patents over an entire genus of antibodies potentially up to a quintilian. I didn't even know that was a number, but there you have it, a quintilian of potential antibodies. This the court held was not sufficiently specific that an expert could make use of the patent without undue experimentation. Essentially, the court said these patents amount to invitations to do research projects, but you can't actually used them.
Smith: That is fascinating stuff, GC. Well, that brings us to our final opinion for this week, Ohio Adjuvant General's Department versus Federal Labor Relations Authority. This was another seven to two decision and this time Justice Thomas joined by Robert, Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson held that the federal Labor Relations Authority properly exercised jurisdiction over an unfair labor practices dispute involving the Ohio National Guard, the Ohio Adjutant General, and the Ohio Adjuvant General's Department, and a union representing dual status technicians who are federal employees that work for the guard. The court has previously described these dual status technicians as rare birds who occupy both civilian and military roles. They must be National Guard members, but except when actively participating in drills training or deployment, they serve as civilian federal employees who are under the operational control of their state's Adjutant General. Now, an adjutant general is the head of the State's National Guard. When a labor dispute came up between the Ohio National Guard and the union that represents these individuals, the union asked the FLRA to resolve it.
But the Ohio parties argued that the FLRA didn't have jurisdiction to resolve the dispute because it only has jurisdiction under the Federal Service Labor Management Relations Statute, say that five times fast, to resolve disputes between labor organizations and federal agencies. The Ohio parties argued that since they were not federal agencies, the FLRA lacked jurisdiction to decide the dispute. The court though disagreed and found that because ultimately the Department of Defense is clearly a Federal agency under the statute and ultimately who the dual status technicians worked for, the FLRA had jurisdiction to hear the case. Justice Alito joined by Justice Gorsuch dissented arguing that because the Ohio entities are not actually Federal agencies, a proposition that the court does not dispute, the FLRA lacks jurisdiction to enter remedial orders against them. Right after this, my interview with Judge Jennifer Perkins.
>>> Conservative women conservative feminists. It's true we do exist. I'm Virginia Allen, and every Thursday morning on Problematic Women, Lauren Evans and I sort through the news to bring you stories that are particular interest to conservative leaning or problematic women. That is women whose views and opinions are often excluded or mocked by those on the so-called feminist left. We talk about everything from pop culture to politics and policy search for problematic women wherever you get your podcasts, and we are also problematic on social media, so be sure to follow us on Instagram.
Smith: We're pleased to be joined today by Judge Jennifer Perkins, who currently serves on the Arizona Court of Appeals. Judge, welcome to the program.
Jennifer Perkins: Thank you. I'm delighted to be here. I'm a longtime listener, so it's a real honor to be a interviewee.
Smith: Well, excellent. Well, we appreciate you listening and I'm looking forward to our conversation today. Now, before we dive into your legal career, Judge, what made you want to be a lawyer?
Perkins: I actually don't remember a time that I did not want to be a lawyer. It was sort of an ongoing end goal, although most of my life, my experience with law was tied up more in the policy and political side. My parents actually met during college on a political campaign when they both traveled to the Republican National Convention. My father worked his way through law school, which was at George Washington University as a staffer for Senator Pete Domenici. Although perhaps interesting to you, during his final year he moved over to briefly work at the Heritage Foundation before-
Smith: Oh, fantastic.
Perkins: Yeah, before he graduated and returned to New Mexico. But actually my first work at a law firm, I was around age three or four. I began answering phones in formatting floppy discs. I don't know if you're familiar with those, the old school pieces of technology, but that was at my dad's office.
Smith: Yeah, unfortunately.
Perkins: Yeah, back in the day. That was at my dad's office in Portales, New Mexico and around that time I also worked on my first campaign when my dad ran for the state Senate. So, throughout middle school and high school I worked on and off at his law firm and I regularly attended lunch with him and his peers. I always loved hearing about different aspects of law and policy with threads of American history. My dad's name is Mickey Barnett and his knowledge of political history was comprehensive so that we actually, a friend of his dubbed him the Encyclopedia Barnettica, but he was very active with local conservative lawyers and with those who participated in the Federalist Society there, and I attended as many of those events as my parents would allow. So, I always was sort of headed in the direction of law. I actually have a picture of us resolving a sibling dispute with a court proceeding, my dad serving as judge, and my brother and I as our own advocates.
Smith: Who won?
Perkins: I think I usually won. I was a lot more aggressive. My brother is a lot nicer, so perhaps to his detriment. I did take a brief detour in high school. I got involved in athletic training and for a brief time I thought I might become a trainer for the Dallas Cowboys, but law did win out in the end.
Smith: Well, very good. Now, I know you mentioned you grew up in New Mexico and then I know you attended undergrad at George Washington in D.C. and law school at SMU in Dallas. But when you graduated from law school, you initially returned back to New Mexico to practice law. Why did you decide to go back to New Mexico?
Perkins: I had entered law school with an eye toward big firm practice, perhaps a focus on international law, my undergraduate degree from GW is in international affairs. But by the end of my second year of law school, I became more focused on the opportunities available to associates in a smaller firm. I had been very involved with moot court and mock trial competitions, and I hope for an opportunity to gain real litigation, perhaps appellate litigation experience sooner rather than later. But the fall of my third year, we experienced the 911 tragedy, and I think as with many people, that sort of refocused me to think more about doing something that I thought sort of matters. I began to think more about public interest work and where the law could be helpful in that regard. I spent law school my last two years of law school as the Federalist Society Student Chapter President, and through that experience I met Clark Neely from the Institute for Justice.
We had him out as a speaker, and so I followed that up. I applied to work for the Institute for Justice at the headquarters office in D.C., had the opportunity to interview there, and that made me want the job even more. I would say now with the perspective of hindsight, fortunately, I did not get it, which found me a little bit uncertain what to do next, so I returned to New Mexico. I had more connections there and I wanted to kind of refocus and figure out longer term prospects. I ended up at the law firm Browning, what's called at that time, Browning and Piper, which was a civil litigation firm, as a small firm, and I had the opportunity to work on class actions and employment and business disputes. And I really enjoyed the work, but I think perhaps more providentially, James Browning, Jim Browning, my boss there, was appointed to the Federal bench at the end of my first year with that firm, and he invited me to service his first law clerk.
Smith: Fantastic. Well, what was that experience like serving as Judge Browning's first law clerk?
Perkins: I really, especially looking back, I'm just really blessed to have had that experience. For one thing, it actually began several months early in one sense, because I'm at the firm with Judge Browning going through this confirmation process, which perhaps then wasn't as sticky and difficult as it has gotten now. But he did receive a list of about 75 follow up questions from his judiciary committee interview, and I had the opportunity to work with him on preparing those answers, which was just kind of a unique experience to talk with a soon to be judge about his thoughts on such a wide range of issues that might come up or that were relevant to the process of serving as a judge.
Also, once we started, that was in August of 2003, so coming up on 20 years ago, yeah, we learned on the job. We had to come up with our chamber's practices and policies. We had to think about hiring and case assignments and all of those things. I think at one point I was on the first name basis with the Ethics Council at the Judicial conference, just trying to make sure we were doing everything well. Judge Browning actually, he spoke at my investiture five years ago and said "That a lot of the practices I helped set up remain in place," so that's gratifying.
Smith: Well, that's fantastic. Are there any traditions that Judge Browning established with his clerks that you took part in while you worked for him?
Perkins: It was that first year, and we were under a lot of pressure because we inherited the older cases from folks, and Judge Browning was very, very mindful of the need to resolve matters expeditiously. He had been a litigator and really appreciated that, so I'd say the closest thing we had to a real tradition that first year is he really did not having things appear on the internally circulated pending list for very long. So, the last couple of days of every month typically became a marathon session for us. I can remember more than one occasion, my co clerk who had a, I think they were two and four at the time, her children would be sleeping on the couches in the office while we were powering through. I'm not going to say that I have adopted that around the clock marathon as a tradition, but I did appreciate that opportunity to kind of connect well with my clerk and with the staff as a whole with the judge.
Smith: Sure. Well, I guess the follow-up, Judge Perkins, do you have any traditions that you've established with your clerks or with others in your chambers?
Perkins: We don't have any really big, I listen to your interviews and I've actually been inspired to kind of look for something more interesting to do as an ongoing tradition. We do little things. I'm from New Mexico and I love green chili, and so I try to bring in breakfast burritos for staff when someone has a birthday. There's a local restaurant that is owned by folks from New Mexico and they feature green chili in their burritos. And I have a Christmas party in my home each year that I host my staff and their families.
Smith: Oh, that's fantastic. Well, I can say based on previous interviews, barbecue seems to be a popular tradition.
Perkins: Yeah, that is true.
Smith: Where you go. Now after your clerkship, I know you did end up working for the Institute for Justice in their Arizona office. How did this opportunity come about and what was that experience like?
Perkins: Well, about two months before I started my clerkship, I met a man named John who lived in Arizona, and we ended up dating long distance while I clerked, but it sparked my interest in Arizona. And during my clerkship, the Institute for Justice Arizona chapter posted a job opportunity, and so it seemed to be sort of things coming together in my life. It was my dream job. It would allow me to be in the same city as John, so that was how the opportunity arose. I managed to win out on that second round of interviews at the Institute for Justice.
Smith: Excellent. Well, did you have any notable experiences or cases from your time at IJ?
Perkins: Well, I know you're familiar with IJ, so you probably can appreciate that all the cases are fairly notable and interesting. I'll mention three quickly. One of my first cases as lead counsel here in Arizona involved a challenge to the licensing requirements from what was then known as the State's Structural Pest Control Commission. Essentially, through that body, the state required yard maintenance workers to have three separate licenses that were prohibitively difficult to obtain, and this was in order to spray weed killer, sort of Roundup, that same product you and I can buy from a retail store.
That was a case we actually ended up resolving through the legislature because once the members of the legislature caught wind, they were sort of shocked at these zealous efforts of the SBCC. And actually it resulted a couple of years later, the entire agency, the legislature sunset the agency, it no longer exists here in Arizona. The critical functions exist within this Department of Agriculture, but I like to count that as one of my scalps.
Smith: That's a pretty big one, a whole agency.
Perkins: It was a fairly zealous one. A second case that I took lead on involved a local venue called San Tan Flat. It's located on the southeast edge of the Phoenix Metro area. Without getting into too many unnecessary details that nearby neighbors and members of the county board of supervisors had been targeting the venue with a variety of complaints. There were sort of newcomers to the neighborhood. But the county ultimately decided to prosecute the venue for violating a decades old dance hall ordinance, which required dance halls to be completely enclosed. See, the venue had a live music stage and a small area, which could allow dancing, and there was no roof over that area. It was completely encircled by buildings, but there was no roof, so it was not completely enclosed. And a lot of folks referred to this as a modern day Footloose story, and one of them was Drew Carey who covered the story for ReasonTV. There's actually still a video on YouTube about the case.
Smith: Well, we'll have to go check it out.
Perkins: Yeah, it was good. And it's the last one that I'll note is I had the opportunity to work on a series of cases around the country, challenging interior design licensing schemes. And yes, you heard that correctly, licenses to practice. Some states to practice most states, just to use the words interior designer.
Smith: Are you saying bad taste could be criminal in some cases?
Perkins: Apparently that was a big concern.
Smith: Now, in 2009, I know you did leave the Institute of Justice when you became the disciplinary council for the Arizona Commission on Judicial Conduct, where you reviewed and prosecuted ethics complaints against state court judges. How did that move come about?
Perkins: I really loved my time with IJ, but it was a very demanding schedule, litigation schedule, and particularly as it involved a lot of regular travel all over the country. The opportunity at the commission came up and at provided a chance to try something new, very new and interesting, but it also involved a predictable schedule and almost no travel.
Smith: Sure. Well, I can imagine you probably have some good war stories from your time in that position. Do you have any particular war story that comes to mind?
Perkins: Probably my biggest case, just in terms of the amount of effort and work is an interesting story, partly because of what was happening with me personally at the time. So, I'll just say that the Commission on Judicial Conduct when a case moves from just sort of an informal investigation, an informal complaint into a more formal serious case, it looks a lot like traditional litigation. There are formal charges filed. It culminates in a trial or a hearing in front of multiple commission members sitting in a panel. In late 2011, I had a case started against a local justice of the peace that turned into a formal case with formal charges. The timing meant that the trial or hearing would occur in the late spring of 2012. On January 9th, 2012, I can remember quite clearly, I went in to tell my boss I had exciting news, I was pregnant, but that wouldn't mean that we would need to begin figuring some things out.
There's only one disciplinary council for the commission, so we would need to pay, maybe hire outside council when I had time off or delay handling certain things such as a formal hearing. So, that sort of started the conversation there. That day, I walked out of his office and went to leave the courthouse to participate as a speaker in a new judge orientation session, and I slipped on the front steps of the court and shattered my left ankle, which was painful and terrible, but also, just to be completely honest, really embarrassing. They sent a ladder truck with sirens blaring that circled the courthouse, and it was very public.
Smith: It was very memorable, certainly.
Perkins: It was very memorable. So, I had surgery. I still have 10 screws and a metal plate in my left ankle, but this case was going on during that time and we were engaged in some discovery and some battles. But thankfully we were able to move quickly, so we managed to get to the two-day hearing when I was about seven and a half months pregnant, so we didn't end up having a hire outside counsel for it. It was a difficult case. This is something about Arizona that's different from a lot of states, at least eastern states. We have these justices of the peace. They do not have to be lawyer, so this was a non-lawyer judge who made a series of escalating bad choices. And I felt very empathetic toward him personally, but I was convinced that he should not remain on the bench. It was a difficult two-day hearing, mostly physically. I had a swollen ankle and I was very pregnant, but ultimately the commission agreed with me and recommended that the Supreme Court remove him from the bench, which the court did.
Smith: Now I know after your position as the disciplinary counsel, you spent a brief period in private practice before you joined the Arizona Attorney General's Office as the first Assistant Solicitor General, what made you want to take on this role?
Perkins: I was privileged to get to know Mark Brnovich when we both served on our local Federal Society's Leadership Board here in Arizona. And so, when he won election in 2014 as Attorney General, I met with him about opportunities in the office, and it turned out he was looking for someone with an ethics background, so that turned out to be a great fit in a way to sort of bring my experience to bear. He also wanted someone to head up the Attorney General Opinions Process, which is something I was very interested in doing. The AG Brnovich also created a federalism unit here in Arizona, which was housed in the Solicitor General's Office. I was not formally a part of that unit, but I had the opportunity to collaborate on a number of projects with the federalism unit folks. And so, that sort of very interesting portfolio is what really brought me over of my brief stint in private practice back into the public sector.
Smith: And what types of issues did that federalism unit work on?
Perkins: Well, at the time, so this was when we had a Democratic administration in Washington and a Republican AG and Republican administration in Arizona. So, there was a lot of litigation sort of both ways. Sure. There were challenges to some of the EPA regulations that we worked on as parts of multi-state coalitions. There were making processes that the Federalism unit had a chance to weigh in on now and on sort of defense, the Federalism unit worked with some of our state agencies to defend against overreach from the Federal government. So, it was a multifaceted opportunity.
Smith: Excellent, excellent. Now, in 2017, Governor Doug Ducey appointed you to your current position on the Arizona Court of Appeals. How did that come about?
Perkins: Well, a year before that, Governor Ducey's General counsel at the time, who is now Judge Mike Laverty and I had breakfast. We had known each other for some time, and he asked me just in the course of the breakfast if I'd ever considered applying to be a judge. Candidly, I had thought my long service with the Federalist Society, and coupled with my work prosecuting judges for ethical complaints may have made a political appointment not so likely. But Mike encouraged me to apply, and I did so. It took a few rounds with the nominating commission here in Arizona before the governor appointed me in late 2017.
Smith: Fantastic. Now, I know in Arizona, appellate judges stand for retention elections every six years or earlier, depending on the vacancy you filled. Now, I believe you successfully run retention in November of 2020. What was that experience like running for retention?
Perkins: It's not pleasant. It's a very disconcerting process. As you point out, Arizona has what they call as a "sort of merit selection process." We've had that for about 50 years here, and the idea was to move away from a partisan election process for judges. But in my experience, we have unfortunately been kind of moving back in that direction with a more political process and some partisan involvement, except it's kind of one-sided because there are fairly strict limits on what judges can say or do in the context of a retention election. So, there's not a lot of opportunity to defend yourself. It's unseemly, fraught with ethical questions to actually engage in any kind of what somebody would consider campaigning.
So in 2020, there was some partisan money spent opposing a number of Governor Ducey appointees including me. The two main reasons I saw as to why I was included on that list were my affiliation with the Federalist Society and my previous work for the Institute for Justice, which I guess they viewed as disqualified characteristics, which is unfortunate. Now, I don't remember my exact vote total, but I think I had 65% or more of the vote, which so it wasn't even really close race. But it's a disconcerting process.
Smith: Well, you successfully were retained, so congratulations.
Perkins: Thank you.
Smith: Until you're up again.
Perkins: Right, right. Six years.
Smith: That's right. That's right. Now, I did want to ask you a substantive question before we end our conversation today, because I noticed you've participated in a symposium discussing originalism and the Arizona constitution. So, I wanted to ask, what role do you think originalism plays while interpreting state constitutions, and does it differ from the role it plays while interpreting the US Constitution?
Perkins: I think originalism as it's properly understood, plays a critical role in constitutional interpretation at both the State and Federal level. In my experience, I'll be honest, I think it's to some degree a more interesting exercise at the state level because I'm in a state that amends its constitution regularly. So, part of that originalism in the Arizona Constitution symposium that we put on, we covered, there were three different panels, four speakers per panel, and every speaker had a different aspect of the Arizona constitution, and all of them were looking at different timeframes, or most of them were. We adopted our state constitution in 1914 ultimately.
But there are provisions that we discussed past as recently as the 1990s. And so, where the original public meaning resources come, what resources we're considering and what timeframe we're considering spans quite a bit for a state constitution that is so robust, it doesn't fit in your pocket. And I'll just say I'm also very grateful because right now I have quite a number of colleagues on the Court of Appeals and friends upstairs on this Arizona Supreme Court who appreciate and follow the same approach. We look at things from an originalist and textualist per perspective. And so, we get to help each other bear it in mind when we grapple with tough cases.
Smith: Fantastic. Well, Judge, I have a final question. We ask all of our guests on SCOTUS 101. Since you're a regular listener, you probably know what I'm going to ask.
Smith: If you could have a conversation with any Supreme Court, justice, living or dead, who would it be and what would you talk about?
Perkins: So, I was talking to my husband about this. I said, of course, I've been thinking about this questions, and I always come back to the same two possible answers. Joseph's story is somebody I've just always been fascinated with. He's appointed at age 34, and I kind of wonder if he ever struggled with having a sense of perspective given his limited experience in both law and in life, being so young. You certainly don't see that from what he wrote, but I think it would be an interesting conversation. But at the end of the day, I do keep coming back to the same final answer, which is Justice Clarence Thomas.
I remember watching his confirmation hearings when I was in high school, and I'm just really a huge fan. His writing style is one that I tried to emulate because I know he seeks to be accessible to the average person, and I think that's a really important thing. He has a fascinating personal story. He has probably the best laugh of anyone I've ever heard, and he writes a lot, often pinning what I think are critical concurrences and dissents, and frankly, that's what I would love to talk about. I would love to talk with him about his process for approaching those separate writings, when to write, and how he approaches that process.
Smith: Fantastic. Well, those are both excellent choices, Judge Perkins. So well done.
Perkins: Well, thank you.
Smith: And thank you so much for coming on the show today. It's been a fascinating conversation, and we'd love to have you back again in the future.
Perkins: Well, thank you very much for taking the time to talk with me, I've really enjoyed it.
Canaparo: Well, Zack, that brings us to my favorite part of the show and your favorite part of the show I dare submit. Trivia
Smith: Now, GC. What evidence do you have to support that?
Canaparo: You don't need to say anything.
Smith: All right, well, let's see what you got for me this week.
Canaparo: All right. Usually SCOTUS opinions are pretty serious things, Kagan footnotes aside. But sometimes you'll get a joke in a dissent or a concurrence, but judicial opinions typically are not places for humor. Sometimes however, the cases themselves are just too funny not to laugh. And I have selected a few of my favorite funny cases for trivia. Are you ready?
Smith: Let's see what kind of warped sense of humor you have GC. All right.
Canaparo: Question number one, who is the funniest justice? And there's actually a right answer to this question.
Smith: Well, you got to give me a little more information, GC. Are we talking on the bench, off the bench? Are we talking current justices, previous justices? What's my realm of possibilities here?
Canaparo: We're going to say recent justices on the bench.
Smith: But they don't necessarily have to be current justices.
Smith: Well, I would think Justice Thomas is a pretty funny guy. He has a great sense of humor, but he doesn't talk much from the bench. I'm going to go with Justice Scalia since he was famous for mixing it up with his advocates and occasionally getting a laugh from the crowd.
Canaparo: Yes, you're right. And not just occasionally, in fact, there was a study done that looked at how many times the notation laughter appeared in the oral argument transcripts, and Justice Scalia was far and away the source of the most of them.
Smith: God bless that court reporter who took the time to notate laughter in the transcript.
Canaparo: All right, so turning now to the actual funny cases. Question number one is who is Peaches? This question was at the heart of a fairly recent case, 2018 holding that officers had probable cause to arrest ruckus and debaucherous partygoers. Do you remember what that case was?
Smith: I do not, but I'm fascinated to hear more.
Canaparo: Sure. The case was District of Columbia versus Westby. Police responded to a noise complaint about a house party. They arrived to a wild scene, the opinions written by Justice Thomas. You can tell he had quite a lot of fun writing these facts. But to summarize, the house was trashed. Furniture was in unusual places and very unusual orientations. Guests were in various stages of intoxication and undress. Nobody knew what the party was for. Some people thought that it was somebody's bachelor party, but nobody knew who the lucky man was. Nobody knew who had given them permission to be there. Everyone claimed that somebody else had invited them, but nobody knew who it was. Two of the guests thought that somebody named Peaches had invited them, but there wasn't anyone named Peaches at the party. In the end, the officers got these alleged Peaches on the telephone, but it was very obvious that whoever she was, she had no right to be in the house and that she and everyone else probably knew it too.
Smith: Well, that sounds like a fascinating case in a fascinating party in a lot of ways.
Canaparo: All right, the next case, Bertman versus J. A. Kirsch involved which of the following things? Rotten Tomatoes, Superman, childish behavior by the United States government, or pure judicial sassiness.
Smith: Well, I know your love for trick questions GC, so I'm suspecting it may have had a little bit of all of those things.
Canaparo: Yes, that's correct. A safe bet. Now, this case equal parts amusing and frustrating. The United States government sued Mr. Bertman because tomatoes he had sold them arrived spoiled, but it was not his fault. It was the shipping company's fault, and Bertman won in the lower courts. But the United States government decided it was going to be childish about this. And under the old rules of civil procedure, both a notice of appeal and the response to it had to be filed within 60 days. So, the government waited to file its notice at the last minute on the 60th day. Bertman's response was ruled untimely. He appealed to the Supreme Court, which refused to hear his case.
This prompted a very sassy dissent from Justice Hugo Black who wrote, "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 60th day. I do not doubt that had Bertman's counsel been Superman, his x-ray eyes would've told him that a notice of appeal was being filed blocks away in the courthouse. Or had he been a lawyer with no client's but Bertman, he could have spent the 60th 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."
Smith: Very interesting. I'm guessing this case was in the days before electronic filing was ever present.
Canaparo: All right, fourth question, returning to our funniest justice in a case about how the Americans with Disabilities Act applied to the requirements for a particular sports competition, Justice Scalia said "The case forced the justices to confront an awesome responsibility and a solemn duty." What was the solemn duty and awesome responsibility?
Smith: What was the sport GC?
Canaparo: Well, that actually is the right answer to the question because the question was, I couldn't give you the title of the case because it gives it away. But the question, the great solemn question is, what is golf? So, I'm going to give you that question, Zach. You had the right answer. What is the sport? What is golf?
Smith: Well, sometimes it's better to be lucky than good. I'll take it. Thank you.
Canaparo: The case involved the question of whether a disabled golfer had a right to use a cart during a competition when the rules required walking. The court said, "Yes," Justice Scalia thought that the court didn't have that power, and he ribbed the majority saying "The court ultimately concludes, and it will hence forth be the law of the land that walking is not a fundamental aspect of golf."
Smith: Seems about right to me. Very interesting trivia this week, GC. Some would say it's no laughing matter those questions you posed.
Canaparo: Oh, get off the air.
Smith: Well, on that note, that's all we have for today, so thank you to everyone for listening to SCOTUS 101. Please be sure to subscribe on Spotify, Apple Podcast, are wherever else you listen. And as always, we'd appreciate it if you left us a five star rating.
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SCOTUS 101, is brought to you by more than half a million members of The Heritage Foundation, executive produced by GianCarlo Canaparo and Zack Smith, sound designed by Lauren Evans, Mark Guiney, and John Popp.