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Monday, July 06, 2020

Pop Culture References in Judicial Opinions

I'm against it, except in the rare case that you think might actually be read by the general public. In today's "faithless electors" opinion, Justice Kagan refers to Veep, and "Hamilton" the musical. In one her dissenting opinions recently, she referred to "Schoolhouse Rock." Won't all of this be really dated really quickly? 

Maybe it's just a matter of taste. But I'm not sure that Supreme Court opinions from the 1920s would read better if they said things such as "just like Al Jolson" or "this statute is as mysterious as 'The Shiek.' (Look 'em up kids--they were big once.) 

Posted by Gerard Magliocca on July 6, 2020 at 10:33 AM | Permalink


The main basis for Supreme Court rulings must be the law. http://www.directics.com/altera/

Posted by: Roland | Jul 8, 2020 12:00:00 AM

If you saw a reference to Harry Potter in a supreme court opinion from 2005, the first thing you'd think is that isn't Harry Potter just the hateful ravings of a transphobe? How could the justices condone such exclusionary right-wing propaganda?

Whenever you focus on a cultural narrative--like a book or movie--you take focus away from The Grand Narrative--that we are nothing more than a racist, sexist, homophobic society that needs to repent and reform for its sins with complete political transformation until all outcomes are distributed equally?

Posted by: Yes they can | Jul 7, 2020 3:43:39 AM

Kagan's Hamilton references surely won't age as well as the use of the word 'negro' in Brown v. Board or the n-word in MLK's "Letter from a Birmingham Jail".

Whites can still read those works uncensored out-loud in front of a multi-racial audience without guilt or fear of condemnation and black-listing.
But to read Kagan's references to schoolhouse rock just seems quaint, naive, ethnocentric, and heteronormative to say the least.

Posted by: Ajack Paris | Jul 7, 2020 1:34:52 AM

Perhaps Kagan's reference to Hamilton will age better than Scalia's homophobic catholic morality in Lawrence v. Texas. What is and isn't hard to read seems to be in the mote of the eye of the beholder.

Kagan's pop-culture references are still more digestible than Stevens' self-citations from his circuit court days.

Posted by: Let it Go | Jul 7, 2020 12:43:10 AM

That's an excellent point about pop culture references.

BTW, I thought Thomas's concurring opinion was pretty good. I wonder if there are any specific battles down the road he and Kagan are preparing for via this case.

Posted by: Douglas B. Levene | Jul 6, 2020 1:24:59 PM

This opinion -- basically a crisp 17 pages -- very well might be read by the general public. Court opinions will include current references that in time will be out of date. Why would a popular culture reference be much different there then some other reference to a now obscure book or event?

Court opinions will have basic principles and then will use examples to help clarify. These examples will logically be topical to some degree.

Posted by: Joe | Jul 6, 2020 11:50:38 AM

Agreed. Pop culture references aren't evergreen. I prefer straight forward judicial prose.

Posted by: TS | Jul 6, 2020 11:31:13 AM

One may read by the way, analysis of the ruling (faithless electors) here in "Excess of Democracy":


Posted by: El roam | Jul 6, 2020 11:27:58 AM

I agree with you.

Posted by: thegreatdisappointment | Jul 6, 2020 11:24:19 AM

One may reach the ruling here:


Posted by: El roam | Jul 6, 2020 11:22:14 AM

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