Sizzling SCOTUS

It’s a misnomer, of course. The SCOTUS doesn’t sizzle.

We mean it only to suggest that the last week has seen a certain SCOTUS bent towards what might be termed trendy issues.

We’re not sure how “trendy” is defined here. But let’s take a look at two examples and see how it pans out in context.

The first is the NCAA anti-trust argument that took place Tuesday. We’re of the opinion that if you applied the anti-trust law to the practices of the NCAA and their member schools those practices would certainly violate the anti-trust laws. The claim on the other side, as we understand it, is that the anti-trust laws do not apply because the NCAA operates an amateur (not-for-profit) rather than a professional sports league.

NCAA schools and their sports programs, such as Notre Dame football, generate a huge amount of popular interest and, it should be noted, revenue. There are arguments that because of the educational nature of the institutions involved that they should retain, and perhaps more importantly be seen as retaining the characteristics of amateurism. The other side looks at the sheer amount revenue involved and, echoing our new national leader, collectively complains “C’Mon, Man!”

But as you might imagine, we here at LoS have a slightly different approach: who cares? We like college and professional football as much as the next guy. But we wonder: why does SCOTUS take up a case about something as frivolous as a game? We have perhaps as a country gone stark raving mad in the importance we attach to these fundamentally unimportant endeavors, but does our SCOTUS have to follow suit and devote “scarce judicial resources” to sorting out this particular question?

Here’s an irony about our position, though. We’re trying to co-opt the snobbery appeal with that argument. The NCAA also makes the snobbery appeal with their application to be heard, which was granted and we think should never have been granted. From their petition for certiorari:

At issue in this case is whether the nationwide
rules that define who is eligible to participate in NCAA
sports will henceforth be set by the NCAA or by one
federal judge in California, assisted by the imagination
of plaintiffs’ lawyers…..

Anytime you see a reference to “plaintiffs’ lawyers” in SCOTUS filings it is an appeal to the snobbery of the Justices and their law clerks. As with so many things, we’ve talked about this before. This kind of snobbery is not so much class snobbery as it is professional snobbery. Plaintiffs’ lawyers went to lesser law schools and had lesser academic “success” and to the SCOTUS inhabitants it is a constant imperative to preserve and advance the transcendent importance of this distinction between lawyers.

We, on the other hand, are trying pointing out that with the NCAA case the SCOTUS is wasting its time on a low brow and frivolous pastime. That’s an appeal to snobbery, too. But we suspect SCOTUS Justices and their law clerks are not snobs in that way.

The other example is the cyber bullying case. Look at all the amicus briefs!

One important observation on this one: school administrators don’t have enough to do if they’re litigating this all they way to the SCOTUS, not to mention all the effort put in to amici.

A number of things are in play here. School districts are government, and government is a favored litigant, especially at the SCOTUS, for reasons that are both understandable and objectionable. Understandable because government interest is probably a reliable indicator of wide interest, in theory. Objectionable because in practice government interest is often driven by the most fervent, not the most rational.

Then there is the computer and internet-related, social media angle. SCOTUS Justices are for the most part technological luddites, but their law clerks are not. The Justices are probably over-impressed with the importance of cyber anything, but it’s a Thing.

What do these two examples tell us then, about how trendiness matters at the SCOTUS? Next post.

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