Justice Thomas is NOT a Vibrator.

I'm not sure what else to take away from last week's Slate article on the Court's oral argument in Pleasant Grove v. SUMMUM. Poor Dahlia! She's left trying to make sense out of what seems to be a policy-preference hash. In my free speech seminar this semester, there are no less than THREE (of twelve) students attempting to parse some or all of the Court's religious speech doctrine. So you know Ms. Lithwick, as erudite and capable as she is, has to be feeling a little dizzy in trying to deal.

The case involves an effort by a (let's be charitable) small religious group to force the Mormon-dominated city government in a Utah community to permit them to erect a monument to their guiding principles, the Seven Aphorisms, which although they sound nutty to me, they claim to be the first draft, so to speak, of the Ten Commandments. Since the park where they would like to place their monument has a Ten Commandments monument identical to the one found constitutional in Van Orden, they argue it's the same thing.

But here's the money quote:

Of all the Summum aphorisms, my favorite is probably "everything vibrates." Whoever wrote that had yet to meet Justice Clarence Thomas, who spends this morning, as he does every morning of oral argument, in perfect, motionless repose.

Also:

Summum isn't before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court's free speech jurisprudence, he will be back in five years to lose it under the court's religion doctrine.

It couldn't happen to a nicer guy.

Justice Kennedy and "grabastic pieces of amphibian s#$@"

Sorry, I don't mean to beat a dead horse, but I felt compelled to put up one more post about the obscenity case recently heard by the Supreme Court. Enjoy!

Quote of the day

A footnote to a recent post...

Roberts: "The reason these words shock is because of the association."

Scalia: "And that's why we don't use the word jolly-woggle instead of the F-word."

Am I the only one that finds the term "jolly-woggle" to be much creepier than the F-word?!? Gross!

Reason #157 why judicial elections make no sense

From yesterday's Houston Chronicle (seriously):

The straight-party Democratic voting that ushered in a new batch of civil and criminal district judges in Harris County was not the biggest surprise. But the fact that four Republican judges survived Democratic challenges left courthouse observers to speculate how they did it.

The most common theory is that voters were wary of Democrats with uncommon names.

The GOP judge with the highest percentage of votes was civil Judge Sharon McCally, whose opponent was Ashish Mahendru. Other Democrats who lost were Mekisha Murray, Andres Pereira and Goodwille Pierre. They lost to incumbent judges Mark Kent Ellis, Patricia Kerrigan and Joseph Halbach, respectively.

"How common a person's name is has always been a factor in judicial races," said civil District Judge Mark Davidson, who lost the bench he's had since 1989. "Up until 1987, people named Smith ran 14 times and won 14 times." Smiths have lost a couple of times since.

Davidson and others said the names matter because judicial races are just too hard for voters to research. One factor is low media coverage. Another is that judges can't say much that distinguishes themselves, since they can't comment on the cases they handle.

'Nuff said!

Justice Stevens Proposes the Rule of Hilarity

For those of you swept up in election fever this week (including me), the rest of the country was still operating as usual, including an important oral argument at the Supreme Court in the case Fcc v. Fox Television Stations.

Here is the background on the case from Oyez:

During the [2002 and 2003 Billboard Music Awards aired on Fox], one musician used an explicative in his acceptance speech, and a presenter used two expletives. The FCC, although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language.

Thus the question for the Court to decide is:

Is the FCC's order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies is "arbitrary and capricious" under the Administrative Procedure Act, based on the FCC's previous acceptance of similar expletives?

Ok, now for the funny stuff. During oral argument, Justice Stevens asked the following question:

JUSTICE STEVENS: Maybe I shouldn't ask this, but is there ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny? Some of these things you can't help but laugh at. Is that -- is that a proper consideration, do you think?

To which Ann Althouse replies: "Imagine the law turning on whether a joke is funny! I know it when I hear it." BAH-ZING!! (N.B. I kind of feel sorry for Justice Stewart being pilloried for his infamous "I know it when I see it" approach to indencency, but not all that sorry).

Let's pause and think about how the rule of hilarity would be adjudicated:

Defendant	Offending passage	Ruling
Chris Rock	Doctors don't cure s$%^! The last disease doctors cured was polio, when's the last time you met someone with polio?	Passes constitutional muster
Mitch Hedberg	My belt holds up my pants and my pants have belt loops that hold up the belt. What the f#&@’s really goin on down there? Who is the real hero?	Depends on whether Justice Kennedy has the munchies
Pauly Shore	F#&^ you, Sandler!	Definitely obscene

BTW, the solicitor general's answer to Justice Stevens' question:

When "celebrities use particularly graphic, vulgar, explicit, indecent language as part of the comedic routine," he said, there is "potentially greater harmful impact on children."

Apparently the government has perfected a time machine because the solicitor general appears to be from the year 1957. Get a sense of humor, for f*#&'s sake! And the FCC needs to grow a pair! They shouldn't take their marching orders from the Religious Right.

One for the History Books

There is one historical footnote to yesterday's elections that I think is deeply moving. As a Virginian, I was very proud to see my state go blue last night for the first time since 1964. But as an American, I was even more proud of the results in one particular part of Virginia.

Prince Edward County, Virginia is a small, largely rural, community located 60 miles southwest of Richmond. It has about 20,000 residents, one-third of whom are African-American. It is the home to Longwood University, a former teacher's college.

Any student of the civil rights movement will remember Prince Edward County for several reasons. One reason is because the NAACP initiated litigation against the segregated school system in the case Davis et al. v. County School Board of Prince Edward County. The case was combined with similar suits in other jurisdictions and taken to the Supreme Court and became the case we know as Brown v. Board of Education.

When the courts forced Prince Edward County to desegregate, the county became the poster child for the massive resistance movement. Rather than open the school doors equally to all of their children, the county (literally) closed the school doors to all their children. They shut down the public school system and gave their citizens tax credits to attend private schools - except none of the private schools would accept black students. African-American students in that county had no educational options for five years until the plan was ruled unconstitutional in 1964.

Many African-American students who were denied an education still live in Prince Edward County. The state legislature attempted to rectify this situation on the 50th anniversary of Brown by creating a scholarship fund that would help those who had been affected by the closing of Prince Edwards' schools.

If you go back even further into history, Prince Edward County holds even greater civil rights importance. From Prince Edward County it is but a few short miles to the small hamlet known as Appomattox Courthouse, where on Palm Sunday, 1865 General Robert E. Lee surrendered to General Ulysses S. Grant to end the Civil War.

When President-elect Obama is sworn in next year, Virginia will mark the 50th anniversary of the closing of the schools in Prince Edward County. Obama won the Commonwealth of Virginia, and even more importantly, Obama won the vote of Prince Edward County by 10 percent. Oh my, how far we have come...

On May 21, 1961, civil rights leaders Oliver Hill, Roy Wilkins, and Reverend Francis L. Griffin attended a gathering to discuss the closing of Prince Edward County's schools.

Vote, Damnit!!!

Unless you have been living in a cave (by which I mean Canada), you should know today is Election Day. So here's some inspiration to get you to "exercise" your civic duty.