Monday, May 30, 2016

Prince, the Supreme Court, and Politics: His Little Red Politico-legal Legacy

      The death last month of Prince Rogers Nelson, musician and moustache extraordinaire, is appropriate to remember on Memorial Day, including for his impact on the Supreme Court and on American politics and law. Granted, it's not a huge legacy, his politico-legal one, but of interest, and rebellious enough to call "red" as a little red corvette, even. (Or maybe purple, if you will.)

     First off, let's see Prince's impact on the budding thought of one young White House aide in the Reagan era, a certain John Glover Roberts Jr.:

I. John Roberts: Keeping Michael Jackson and Prince in Endorsement Equipoise. (With Notes on Ronald Dworkin, Mozart, and Beethoven)

     How did the young "J. Ro" develop his sense of administrative fairness before falling into the seat of Chief Justice of the United States? One surprising anecdote (first dealing with Michael Jackson) comes from Charlie Savage of the New York Times, From the White House Files: A Fight Over Michael Jackson,

     Mr. [Michael] Jackson had visited the White House on May 16, 1984, and appeared with Mr. Reagan at an event on efforts against drunken driving. The following month . . . . the White House was asked to contribute a letter from Mr. Reagan recognizing the pop singer’s work.

     . . . .

     On June 20, 1984, [White House aide James K.] Coyne forwarded the proposed letter [to the] office of then-White House Counsel Fred Fielding, where Mr. [John] Roberts, then a young associate White House counsel, was assigned to review it[; he] expressed acid disapproval in a June 22, 1984, memorandum to Mr. Fielding:

           I recognize that I am something of a vox clamans in terris in this area, but enough is enough. The Office of Presidential Correspondence is not yet an adjunct of Michael Jackson’s PR firm. 'Billboard' can quite adequately cover the event by reproducing the award citation and/or reporting the President’s remarks. (As you know, there is very little to report about Mr. Jackson’s remarks.) There is absolutely no need for an additional presidential message. A memorandum for Presidential Correspondence objecting to the letter is attached for your review and signature.

Id. Ann Althouse notes, in When Chief Justice John Roberts was a vox clamans in terris... about Michael Jackson.,

     Ha ha ha. What a character! The wise Latin! The voice of a terrified clam!

Id. (By the way, Roberts' Latin may be questionable: vox clamantis in deserto, "a voice crying in the desert", is a well-known saying, maybe first seen in the Latin Vulgate translation of Isaiah 40:3. But vox clamans in terris is more like "voice crying out in the earth", a somewhat less romantic claim than " the desert".)

     Roberts went on,

     I hate to sound like one of Mr. Jackson’s records, constantly repeating the same refrain, but I recommend that we not approve this letter. Sometimes people need to be reminded of the obvious: whatever its status as a cultural phenomenon, the Jackson concert tour is a massive commercial undertaking. The tour will do quite well financially by coming to Washington, and there is no need for the President to applaud such enlightened self-interest. Frankly, I find the obsequious attitude of some members of the White House staff toward Mr. Jackson’s attendants, and the fawning posture they would have the President of the United States adopt, more than a little embarrassing.

     It is also important to consider the precedent that would be set by such a letter. In today’s Post there were already reports that some youngsters were turning away from Mr. Jackson in favor of a newcomer who goes by the name “Prince,” and is apparently planning a Washington concert. Will he receive a Presidential letter? How will we decide which performers do and which do not?

Savage (or Althouse), supra. (See Alex Balk, When John Roberts Denied Michael Jackson Cert: "Dude found out about Prince from the Washington Post. Can you imagine living in an age when newspapers were that relevant?") And Althouse expounds,

     A newcomer who goes by the name "Prince." Yeah, don't want the Prez bowing down to bogus royalty.

     And I love the resistance to ad hoc decisionmaking and the demand for neutral rules of general applicability. Put that man on the Supreme Court!

     Equal justice under law.

Id. Althouse's possible sarcasm is not completely valid here, though, since Roberts does bring up a valid question: why Michael, the King of Pop, instead of Prince, the...Prince of Pop? If Roberts has been fair in his time on the Court--neutral enough to outrage conservatives who wanted him to overturn the Affordable Care Act, for example--some of the genesis of this fairness may come from his musical musings back when he was in the Reagan White House and refused to put the Gloved One above the Purple One. (Roberts gets extra points since his middle name is "Glover", so that he might hypothetically be biased in favor of the Gloved One.)

     Moreover, Roberts outdoes legal titan Ronald Dworkin, who in his 1996 essay, Objectivity and Truth: You'd Better Believe It, opines,

     I assume that you, like me, are willing and think yourself able to make at least some comparisons of artistic merit: we think . . . . Mozart a greater composer than Beethoven.

Id. at 133. The problem is that the Dwork gives no reason--and thus no "objectivity" or provable "truth"--for thinking that Mozart is really greater than Ludwig van B. Charles M. Schulz's "Schroeder" certainly wouldn't think Wolfgang beats Ludwig. And the European Union's anthem is part of Beethoven's Ninth Symphony, not anything by Mr. Amadeus. Thus, Roberts beats Ronald for this round, since Roberts shows admirably neutral "judicial restraint" instead of injecting his own personal biases into the musical judgment as Dworkin did.

     So, Prince has his place in Supreme Court history, as careful examination shows. (Printz, i.e., Printz v. United States, is another matter entirely, of course.....)

II. Prince's Piquant Politics

     By contrast, Mr. P's legacy in politics may be less "neutral" than his Supreme Court one: see, e.g., Joi-Marie McKenzie, Prince's Lyrics Gave Clues to His Personal Politics,


     Prince released this tribute last year and performed it at a benefit concert in Baltimore after the death of Freddie Gray. In the song, Prince croons: "Does anybody hear us pray/For Michael Brown or Freddie Gray? ... Are we gonna see another bloody day?/We're tired of the cryin' and people dyin'/Let's take all the guns away."

"Ronnie, Talk to Russia"

     In this 1981 song from Prince's aptly-named album, "Controversy," the singer was speaking directly to President Ronald Reagan, even referencing him by name. It was a time when the U.S. was in the midst of the Cold War. He sang, "Ronnie talk to Russia before it's too late/Before it's too late ... Ronnie talk to Russia before it’s too late/Before they blow up the world."


Id. So, Prince may not only be an inspiration (of sorts) to Reagan's aide John Roberts, he may have inspired Reagan himself to play nicely with Mikhail Gorbachev and end the Cold War in Eastern Europe. (?) This, and Prince's words on Michael Brown and Freddie Gray supra, doesn't necessarily make Prince a "red", though it may show his politics to be "redder" (more left-of-center) than the politics of, say, Trump-endorser Kid Rock.

III. The "Mauve Minnesotan": the Court's "Minnesota Twins", and the "Prince Protection Act"

     Getting back to the Supreme Court: since the purple Prince was also the "Mauve Minnesotan", we should recall, since this is Memorial Day, the "Minnesota Twins" of the Court, i.e., Chief Justice Warren Burger and Justice Harry Blackmun. While they were both Minnesotan, Blackmun became more liberal during his tenure on the Court, so that he was a little less of a "twin" at that point. When will the next Minnesotan pop up on the Court?? --And speaking of Minnesota, one should briefly mention the "Prince Protection Act", see, e.g., Jennifer Williams-Alvarez, After Backlash, Law to Protect Prince’s ‘Likeness’ Tabled–For Now,

     In the wake of Prince’s death, two lawmakers in Minnesota proposed a bill to codify publicity rights and protect those rights after a person dies. The Personal Rights in Names Can Endure Act, otherwise known as the PRINCE Act, attracted a lot of naysayers due to its broad wording. And such criticism has apparently been heard, as the bill has been pulled from consideration for the time being. . . .

Id. Everyone loves Prince, but using his death to torpedo the First Amendment may be counterproductive.

IV. What Prince's Civility Could Teach the Supreme Court Commentariat

     Torpedoing anything can be counterproductive, actually; so, sensible people must beware of violent behavior, or even excessively nasty speech. Prince was quite a verbal pistol in his early years, but in his later ones, he became quite the teetotaler in terms of language: see, e.g., Jeff Nelson & Maria Mercedes Lara, Devoted Jehovah's Witness Prince Kept a Swear Jar at Paisley Park: 'He Wasn't Joking,' Says Congregation Member,

     "If you swore at Paisley Park, he would charge you between 10 and 3 dollars per swear word," said [James] Lundstrom, who belonged to the same congregation as Prince and had known the musician for years. "And he wasn't joking. You had to pay in cash in the bucket.["]

Id. Thus, Prince might be a good role model in this era of highly uncivil Supreme Court punditry. For example, Mark Tushnet's recent Abandoning Defensive Crouch Liberal Constitutionalism says, inter alia,

6       Finally (trigger/crudeness alert), f[]ck Anthony Kennedy.

Id. (brackets not in original) Tushnet would be ponying up some dollars if he were in Judge Prince's court. (Another recent "Balkinization" article, Sanford Levinson's Is Sanders stupid or simply a coward?, may not have any dirty words, but has a similar civility problem, in its inflammatory Bernie-bashing title.)

     Politically to the right of the two left-of-center pundits above, we see Ilya Shapiro (and Randy Barnett) opening a can of whoop on John Roberts for his NFIB v. Sebelius decision, but maybe going too far, as Orin Kerr notes in The rise of Donald Trump and the politics of delegitimization, including quotes from Shapiro,

     3) Because the Court upheld Obamacare despite recognizing it was unconstitutional, the Court ruled in a “wholly extra-legal way” that was a “sucker punch” to the constitution-loving Republican base. This understandably “increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.”

     . . . .

. . . Shapiro’s argument relies on what I’ll call the politics of delegitimization. When someone does something you don’t want, you say they acted for improper and corrupt reasons. . . . But in the long run, the strategy backfired because Trump coopted it. I think that unexpected backfiring is at least one cause of Trump’s popularity.

Id. Again, even if there's no foul language from Shapiro or Barnett, their idea that John Roberts is a dirty cheater or such, is not terribly civil. What hope is there for American civilization if even well-known academics in the "top Supreme Court commentariat" are needlessly uncivil? Prince's aspirational lyrics from Purple Rain, "I never meant to cause you any sorrow/I never meant to cause you any pain", id., may be a good guide as to how Supreme Court pundits should civilly conduct themselves. It's not a crime to be decent or civil.

V. Conclusion: Judging Prince

     Aside from the "swear jar", Prince may not have been a very legalistic or trammeled figure; cf. President Obama's eulogy for Prince, which notes, "'A strong spirit transcends rules,' Prince once said", id. So Prince was just a little bit antinomian. On the other hand, he had a serious side, and was concerned about "judgment", see, e.g., 1999,

     I was dreamin' when I wrote this, forgive me if it goes astray

     But when I woke up this mornin', could've sworn it was judgment day

Id. And his conversion to Jehovah's Witness-dom may have further accentuated his apocalyptic mentality, leading to his "cleaning up his act before it's too late", as with the "swear jar" noted supra.

     None of us is in a position to give a final judgment on Prince--only Jehovah, the final "Supreme Court of the Universe", as some say, may be fit to do that--; but one hopes that wherever Prince is now, his helping John Roberts seek disinterestedness, his late-life love of civility, and anything else good about him, will be counted in his favor. The mere fact that some guy from Minnesota with a falsetto, a guitar, ruffles, eyeliner, and high heels (as opposed to pompous law professors or BigLaw lawyers, folks who probably don't have falsetto-guitar-ruffles-eyeliner-heels) could contribute anything positive to this nation's learned and legalistic discourse, reminds us that democracy and equality are not a dead letter after all, that free speech has unexpected side benefits, and that government "by the people" still lives this Memorial Day.

(To be cross-posted, with edits, to Casetext)

No comments:

Post a Comment