The Volokh Conspiracy

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SCOTUS Covers The Waterfront On The Lake Of Torches

He coulda been a contender.


On Thursday, the Supreme Court decided Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. The majority held that the phrase "other foreign or domestic government" in the bankruptcy code includes Indian tribes. Justice Gorsuch in dissent, however, found that under the clear statement rule, Indian tribes were not covered by this language. Thus, for the ninth consecutive time, Gorsuch wrote an opinion ruling for the Indian tribes.

I had attended oral argument in this case back in April. Justice Gorsuch offered an admittedly "silly" hypo.

JUSTICE GORSUCH: –before we leave that, though, let's say –I'll give you a silly hypothetical. Let's say I invite you to go to my refrigerator and take out either vanilla or chocolate ice cream and help yourself. Does that license you to take the last scoop of the chocolate-vanilla swirl ice cream in a separate container, maybe one with a note on it that says "reserved for a later birthday"?

And wouldn't you know it, that exact hypo made it into Justice Gorsuch's dissent–albeit he swapped "chocolate-vanilla swirl" for Neapolitan.

With this point in mind, respondent's reading collapses.To see why, consider another example. Suppose you are a houseguest, and your host invites you to "help yourself to the chocolate or vanilla ice cream in the freezer." Upon opening the freezer, you find three tubs—vanilla, chocolate, and Neapolitan. For argument's sake, too, let's say the last tub also has a sticky note: "Do not eat without clear permission." Which ice cream can you take? If the host meant "or" exclusively, you may take either chocolate or vanilla, not both. If the host meant it inclusively, you may scoop some of each. In neither event, however, would you have permission to take the Neapolitan ice cream—especially given the cautionary note.

Another turn of phrase stuck out at oral argument. Justice Barrett observed that the phrase "other foreign or domestic governments" was "an attempt to cover the waterfront." This phrase refers to an effort to be thorough or comprehensive. There is also a famous song, titled "I Cover the Waterfront," which was performed by Billy Holiday, Frank Sinatra, and others. This idiom is especially fitting since Lac du Flambeau translates to Lake of Torches, and the Chippewa Indians are of Lake Superior.

And wouldn't you know it? This phrase made it into Footnote 7 of Justice Jackson's majority opinion, responding to Gorsuch's ice cream hypothetical:

For another, whereas the pairing of "foreign" and "domestic" often covers the waterfront, see supra, at 6, the dissent's hypothetical pairings do not have that same effect. And unlike animals (which need not be small or doglike) or ice creams (which need not be chocolate or vanilla), every government must be foreign or domestic to some degree; the question is just where on the spectrum it falls.

It has become fashionable to claim that Justice Jackson is influencing the other Justices. I've yet to see any actual evidence of this assertion. But at least here, Justice Barrett's phrasing during oral argument was transplanted directly into a pivotal footnote in the majority.

Speaking of nautical themes, a related phrase is "On the Waterfront," the title of the famous Eliza Kazan movie. I think Marlon Brando's famous advice should be heeded by the Justices who could have been contenders, but instead consistently underperform.

Norm McDonald, Carly Simon, Billy Holiday, and Eliza Kazan. Not a bad week for pop culture references. Now, onto Brackeen.