Bench Memos

Law & the Courts

Fish, Schmish

Justice Elena Kagan is a very deft and skillful writer, but she seems unable to resist the temptation to get overly cutesy and colloquial. Her dissent yesterday in Yates v. United States (is a fish a “tangible object” within the a Sarbanes-Oxley Act provision?) reflects all those qualities.

As to too cutesy: Kagan cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish for the proposition that a fish is “a discrete thing that possesses physical form.” But apart from the fact that the majority does not dispute that obvious proposition, I don’t see how the Dr. Seuss book provides any meaningful support for it. It seems that Kagan is just trying to win attention for citing Dr. Seuss—attention that her opinion predictably receives.  

Consider also this passage of Kagan’s (emphasis added):

The plurality claims that if §1519 applied to objects generally, Congress would not have placed it “after the pre-existing §1516, §1517, and §1518” because those are “specialized provisions.” Ante, at 11. But search me if I can find a better place for a broad ban on evidence-tampering.

“Search me”? Is that juvenile slang really the sort of thing that belongs in a Supreme Court opinion? (Yes, I understand that the case involved a search. Hence, the temptation that Kagan couldn’t resist.)

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