The Wit of the Lower Courts

Submitted By Max Clock Jan 07, 2012 1 Comment

As a sequel to my piece compiling wit from the Supreme Court, I’ve assembled some opinions from lesser-though-still-important U.S. courts. I collect excerpts while conducting research and also thank my friends who sent me three of the quotations below. As before, I’m including citations to the cases so you can have the pleasure of reading the full opinions.

Before we get to other courts, though, here’s another great dissent from Justice Scalia:

“The issue, however, is not whether court rules are “mutable”; they assuredly are. It is not whether, in the light of “various circumstances,” they can be “modifi[ed]”; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy.” Dickerson v. United States, 530 U.S. 428 (2000)

On to the federal appellate courts. This quotation is from a recent opinion from the 11th Circuit on healthcare reform (soon to be argued before the Supreme Court) stating just how wrong Madison was on the Commerce Clause:

“Madison noted that the commerce power was one such enumerated power: ‘The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.’ The Federalist No. 45, at 289 (James Madison) (E.H. Scott ed., 1898). The commerce power has since come to dominate federal legislation.” Florida ex rel. Atty. Gen. v. U.S. Dept. of Health & Human Services, 648 F.3d 1235 (2011)

A concurrence/dissent in the same opinion addresses the slippery slope argument against forcing people to buy health insurance:

“The parade of horribles said to follow ineluctably from upholding the individual mandate includes the federal government’s ability to compel us to purchase and consume broccoli, buy General Motors vehicles, and exercise three times a week. However, acknowledging the constitutionality of the individual mandate portends no such impending doom.” (Marcus, J., concurring and dissenting)

The same issue was heard by the 6th Circuit and a concurrence/dissent in that case summed up the slippery slope problem this way:

“That brings me to the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership? Could it require computer companies to sell medical-insurance policies in the open market in order to widen the asset pool available to pay insurance claims? And if Congress can do this in the healthcare field, what of other fields of commerce and other products?

These are good questions, but there are some answers….

Why construe the Constitution, moreover, to place this limitation—that citizens cannot be forced to buy insurance, vegetables, cars and so on—solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies? Few doubt that the States may require individuals to buy medical insurance, and indeed at least two of them have. See Mass. Gen. Laws 111M § 2; N.J. Stat. Ann. § 26:15–2. The same goes for a related and familiar mandate of the States—that most adults must purchase car insurance. Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution. That means one of two things: either compelled purchases of medical insurance are different from compelled purchases of other goods and services, or the States, even under plaintiffs’ theory of the case, may compel purchases of insurance, vegetables, cars and so on. Sometimes an intuition is just an intuition.” Thomas More Law Ctr. v. Obama, 651 F.3d 529 (2011) (Sutton, J., concurring and dissenting)

Next is a dissent from a denial of a rehearing in banc in the 2nd Circuit from September over whether plaintiffs had standing to challenge to a surveillance law:

“At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake—for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel’s and plaintiffs’ only perceptible interest is to carve out for themselves an influence over government policy—an interest that the law of standing forecloses.

For the foregoing reasons, I conclude that the plaintiffs suffered no injury, and certainly none that can be redressed by this Court. In part, that is a function of the frivolous nature of the claim. In that respect, it bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.” Amnesty Int’l USA v. Clapper, 2011 WL 4381737 (2011) (Jacobs, C.J., dissenting)

In the same case, a concurrence over the contested issue of harm for standing had this to say in a footnote responding to another dissent:

“Judge Livingston argues that these plaintiffs have suffered no actual or imminent harm. If I simply answer, as she contends, “Not so,” that is because it simply is not so.” (Lynch, J., concurring)

In a humorous footnote in a 7th Circuit opinion, a judge corrects a court reporter while citing Ludacris:

“The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch ‘hoe.’ A ‘hoe,’ of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden’s response. We have taken the liberty of changing ‘hoe’ to ‘ho,’ a staple of rap music vernacular as, for example, when Ludacris raps ‘You doin’ ho activities with ho tendencies.” United States v. Murphy, 406 F.3d 857 (2005)

Finally, here’s a dissent from a case in the Wisconsin Supreme Court:

“‘The most quickly and confoundingly expanding legal doctrine is . . . the economic loss rule.’ Like the ever-expanding, all-consuming alien life form portrayed in the 1958 B-Movie classic The Blob, the economic loss doctrine seems to be a swelling globule on the legal landscape of this state.” Grams v. Milk Products, Inc., 699 N.W.2d 167 (2005) (Abrahamson, J., dissenting)

This is, of course, only a small fraction of the plethora of entertaining court opinions in the universe of American jurisprudence. I’m always on the lookout for new additions. If we’re going to spend all our waking hours reading these, we might as well have fun.