A Long Summer for SCOTUS Watchers
By The Supreme Court term has only just ended and Court watchers and reporters are trying to sum up what we’ve seen, from gun rights to the rights of those detained at Gitmo.
And, in an indication of the long summer that is to come for those who follow SCOTUS’s doings, they’re taking stock of Chief Justice Roberts’ (erroneous, it turns out) Bob Dylan reference. From Liptak:
Chief Justice Roberts’s predecessor, William H. Rehnquist, cited his beloved Gilbert & Sullivan in a 1980 dissent from a decision that the press had a constitutional right of access to court proceedings. He was still an associate justice, and he thought the court had made up the right out of whole cloth. In rebuttal, Justice Rehnquist relied on the Lord Chancellor in “Iolanthe” to rebuke the majority. “The Law is the true embodiment of everything that’s excellent,” the Lord Chancellor says. “It has no kind of fault or flaw, and I, my Lords, embody the Law.”
That made Justice Rehnquist’s point pretty well. The Roberts citation is more problematic.
On the one hand, he showed excellent taste. “Like a Rolling Stone,” as Greil Marcus has written, is “the greatest record ever made, perhaps, or the greatest record that ever would be made.”
On the other hand, Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.”
It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod. “It was almost certainly the clerks who provided the citation,” Professor Long said. “I suppose their use of the Internet to check the lyrics violates one of the first rules they learned when they were all on law review: when quoting, always check the quote with the original source, not someone else’s characterization of what the source said.”
The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company. (See, e.g., “Me and Bobby McGee.”)
Ah yes, that tricky double negative and those pesky original sources — a scourge to many journal-editing law students, and, it turns out, Supreme Court clerks.
It’s going to be a long action-free summer, folks – at least as far as SCOTUS is concerned.