Bench Memos

NRO’s home for judicial news and analysis.

The Supreme Court’s Year in Revue


For an engaging review of the Supreme Court’s recently completed (well, almost completed) term, read John P. Elwood’s “What Were They Thinking:  The Supreme Court in Revue, October Term 2008” from the forthcoming issue of the Green Bag. As usual, Elwood is as informative as he is irreverent — and given how irreverent he is, that’s saying a lot.  

Here, for example, is Elwood’s discussion of FCC v. Fox Television Stations:

When it comes to certain swear words, we are all ninth graders tittering at the back of Mrs. Moriarty’s English class, and this case involves, as the Court put it, “the F-Word and the S-Word.” In D.C., those terms usually denote “fawning” and “sycophantic,” which aren’t even bad words locally, but here, they involve the usual outside-the-Beltway sexual and excretory terms. In interpreting the Communications Act of 1934’s prohibition on “obscene, indecent, or profane language,” the Federal Communications Commission formerly took the position that fleeting references typically were not considered “indecent.” In 2004, the FCC declared that even a single use of these words could be indecent. That rule is an obvious hazard for celebrities, for whom such words are a basic building block of communication akin to nouns, verbs, and insincere air-kissing, and a broadcaster quickly found itself up S-Word creek after Bono Vox, Nicole Richie, and Cher F-Worded up. The broadcasters sued and the Second Circuit found the FCC’s reasoning inadequate under the APA. By a 5-4 vote in a decision written by Justice Scalia, the Court held that the FCC’s new rule satisfied the APA, but declined to address any First Amendment challenge because it was not decided by the court below. The big news from an Ad-Law perspective is that the Court glossed the State Farm test for the reasonableness of a new administrative interpretation, see Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., and held that an agency “need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one: it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” That cleared up lingering uncertainty about the meaning of State Farm and set a low standard for the government in making changes. Heady stuff for APA buffs – or as they’d say on Vulcan, “Semara.”

And here’s Elwood’s reflection on Justice Souter’s retirement:

Having finally succeeded in getting the phrase “willy-nilly” into the United States Reports, see Kennedy v. Plan Administrator, the Court’s leading user of folksy phrases concluded he had no new worlds to conquer and Justice Souter notified the President in May of his intended retirement. Souter had frequently said that he had the world’s best job in the world’s worst city because he never took to living in Washington, despite living in a tiny soulless hi-rise apartment in a crime-riddled neighborhood. Souter complained that he underwent an “intellectual lobotomy” when the summer ended and he left Weare, N.H. to return to Washington, which, if you have been to the Florence of the Western Merrimac Valley, really goes without saying. Souter privately told friends – and by “friends,” I mean people who betray personal confidences at the first opportunity when reporters call – that if President Obama were elected, he would be the first to retire, thus making him the first Justice opposed for confirmation by Barbara Mikulski, Ted Kennedy, John Kerry and NOW (his confirmation would “end . . . freedom for women in this country”) to bide his time waiting for the election of a Democrat.

Tags: Whelan


Subscribe to National Review