“Harry. Stay awake.”
That was the note Justice Antonin Scalia slipped to Justice Harry Blackmun during the final argument of the 1990-91 term, on whether the Federal Insecticide, Fungicide and Rodenticide Act allowed town supervisors to restrict aerial spraying over a rural Wisconsin tree farm. (It did.)
Passing such notes is apparently not that unusual, according to an article in the Wall Street Journal by Jess Bravin. The notes are a subset of some 15,000 handwritten documents that Timothy Johnson, a political-science professor at the University of Minnesota, has copied over two decades from archives housing the papers of former justices.
Here are some of the other notes that Johnson and his team have uncovered:
- Justice William O. Douglas, in reference to a lawyer: “We should not give this guy many points in his argument. But as far as his jacket is concerned, he comes out way above the average.”
- Justice William Rehnquist wrote in March 1975, during arguments over New York regulations cutting welfare payments to mothers who kept lodgers in their homes penned a limerick: “There was a young girl from Cape Cod/Who thought little babies came from God. But it wasn’t the Almighty/Who lifted her nighty/It was Roger the Lodger, by God!” Rehnquist was the lone dissent when the court later ruled against the state.
- Justice Ruth Bader Ginsburg, speaking at the National Book Festival, said Justice Scalia used to whisper jokes to her when they were seatmates. “When we didn’t sit next to each other, he would sometimes send me notes I can’t repeat to this audience what some of them were.”
- Chief Justice Warren E. Burger to Justice Blackmun “Note ‘blond’ in second row, center. She is here almost daily—at least since you came!”
- Justice Blackmun to Justice William Brennan, referring to a prosecutor’s brief: “Bill, do they have any prizes here for the term’s worst brief?” “He’ll presumptively win the prize,” Justice Brennan responded on the same piece of notepaper.
- Justice Sandra Day O’Connor complained about having to swear in a new secretary of commerce. “They talked too long,” she wrote.
- Justice John Paul Stevens, apparently answering a Rehnquist trivia question, on 1930s Cubs right fielder Kiki Cuyler: “Stole the most bases in Nat’l League (I think).”
- Game 5 of the 1973 National League Championship Series played during arguments over the Central Intelligence Agency’s secretive budgeting procedure. Court aides delivered updates to the justices, who shared them down the bench. “[Ken] Griffey flied out to center, w/bases loaded. NO SCORE,” reads one note, wrapping up the first inning. Suddenly, a news event interrupted: “V.P. Agnew just resigned!!” another note reads. The next line returned to the important stuff: “Mets 2, Reds 0.”
So who knew that the minds of these titans of the law sometimes wandered from the case at hand.
I find it refreshing to know that the same mundane things that we ordinary folk might be interested in, like how someone dresses or the score of a baseball game, are also of concern to the nine members of the Supreme Court.
I wonder if any of the current justices have passed a note to Justice Kavanaugh asking if he would like to go out for a drink after work. After all, we all know he likes beer.
*image from ABC News