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Man V. Other Man

Street stencil art by Jef Aerosol

You Are Not Cool

Supreme Court Justice Samuel Alito is known for writing colorful decisions, full of “gobbledegook” and even John Lennon quotes. But whatever his legal philosophy, one thing he isn’t is cool.

There is a poignant scene in Cameron Crowe’s film Almost Famous in which the rock critic Lester Bangs warns 15-year-old William Miller of the perils of seduction by the musicians Miller is covering for Rolling Stone magazine. Banks (played by Philip Seymour Hoffman) says to Miller (Patrick Fugit portraying a young Cameron Crowe):

“They make you feel cool. And, hey, I’ve met you. You are not cool.”

This profound advice extends well beyond the worlds of rock ‘n roll and music criticism. All writers should take heed of Bangs’s insight that trying to be cool when you simply aren’t risks muddling one’s clarity of observation and analysis and jeopardizes credibility with readers. Journalists, historians, novelists, academics, judges—perhaps especially judges—should take note.

I recalled this scene while reading the two most recent opinions of Justice Samuel Alito, the Supreme Court’s junior member. Justice Alito wrote the opinion of the Court in Pleasant Grove City v. Summon, which held that a local government does not violate the first amendment by maintaining a monument to the Ten Commandments in a public park while refusing to install other permanent monuments that express differing religious views. In Wyeth v. Levine, Justice Alito dissented from the majority’s conclusion that the federal law governing labeling of drugs does not preempt state lawsuit for personal injuries caused by inadequate or erroneous labeling.

The most widely reported passage of Justice Alito’s opinion in Pleasant Grove was his argument that words on public monuments may convey different meanings to different readers:

What, for example, is “the message” of the Greco-Roman mosaic of the word “Imagine” that was donated to New York City’s Central Park in memory of John Lennon? Some observers may “imagine” the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may “imagine” a world without religion, countries, possessions, greed, or hunger.

Alito then quoted the entire lyrics of the song in a footnote. At this point, I began to imagine how John Lennon would have reacted both to Alito’s cooptation of his lyrics and the justice’s decision in the Wyeth case to deny monetary compensation to Diana Levine, a professional musician. Levine’s right arm had to be amputated after she developed gangrene because of faulty labeling of the pharmaceutical company’s anti-nausea drug Phenergan, which she received by inadvertent intra-arterial injection. “[T]ragic facts make bad law,” was Alito’s only lament. It is a far cry from a world in which there is “no need for greed or hunger, a brotherhood of man.”

Justice Alito is a conservative whose views on government promotion of religion and corporate evasion of responsibility for violations of state health and safety laws may or may not comport with the intentions of the framers of the Constitution. But whatever Justice Alito’s legal philosophy, one thing he isn’t is cool. Not cool enough, anyway, to quote John Lennon one week and then turn a blind eye to a victim of corporate malfeasance (as determined by a Vermont jury) the next. Compared to Lennon, how not cool is Alito? Let’s find out.

Samuel Alito John Lennon
When Samuel Alito was in his twenties, he attended Yale Law School. He later wrote that he decided to pursue a career in the law because he disagreed with a number of landmark decisions of the Warren Court that recognized certain rights of criminal due process, such as the right to counsel and the requirement that the police advise those held in custody of their right against self-incrimination, as well as decisions that prohibited state-sponsored prayer in the public schools and established the fundamental right of one person, one vote. When John Lennon was in his twenties, he wrote several dozen of the greatest songs ever recorded, including “All You Need Is Love” and “Revolution,” he experimented with marijuana and LSD, and he had the audacity to claim that “the Beatles are more popular than Jesus.”
In his thirties, Alito served as a lawyer in the Reagan administration, where he argued cases before the Supreme Court. He wrote in his application for a promotion to Deputy Assistant Attorney General that he was proud that he had helped to persuade the Court to limit the use of affirmative action and to cut back on women’s right to reproductive choice. In his thirties, Lennon protested against the war in Vietnam, was deported from the United States on orders from President Richard Nixon, and imagined a world in which there was “nothing to kill or die for, and no religion too.” He also brought public attention to the lingering problems of racial inequality and sex discrimination in his provocatively titled song “Woman Is the Nigger of the World.”
When Alito was in his forties, he was appointed to a seat on the U.S. Court of Appeals in New Jersey. In one of his most prominent opinions, Alito argued that it was unconstitutional for Congress to ban the possession of machine guns. By age 55, Alito was a Supreme Court justice. At age 40, Lennon was murdered by a mentally ill man who shot four hollow-point bullets into him as he walked into his apartment building in New York City.

The Lennon-McCartney partnership of disparate musical tastes and personal temperaments created a body of work of enduring genius. The Alito-Lennon pairing of cultural and political opposites produces only cognitive dissonance.

Perhaps Justice Alito can take solace in the words of another pop icon, an outlaw hipster from a simpler time when—at least as seen through the retrospective lens of television—even the most rebellious youth were clean-shaven, apolitical, and respectful of their elders. As the Fonz once said, “When you’re this cool, they’re out to get you.”

Brian Gray is a professor of law at the University of California Hastings College of the Law in San Francisco. His previous observations on law, politics, and Arsenal Football Club have appeared in the Los Angeles Times, the Los Angeles and San Francisco Daily Journal, and on his web pages. He also serves as an after-school tutor and board member of 826 Valencia, a nonprofit writing and literacy center in San Francisco’s Mission District. More by Brian E. Gray