One of the great joys of reading Justice Antonin Scalia's opinions, even when the question presented is relatively boring, is parsing his strange analogies. Last week, we learned he hated rock music, and believed that purchasing a gun is like purchasing milk and eggs. This week, he has some views on coffee to share. With bonus unnecessary Latin.
Loughrin v. United States turned on the interpretation of "by means of" in a bank fraud statute, i.e. whether or not an accused could be said to have gotten money from the bank "by means of" his fraud without a specific showing that he meant to screw over the bank. Justice Elena Kagan, sensibly, essentially ruled that it depended on context. In the case before the Court the man in question had been forging checks, a bank was involved, the statute was satisfied. Easy-peasy.
And Scalia largely agreed. But he made a partial dissent anyway, revealing himself to be that guy in your college class who would always use a Latin word when an English one would do:
... I am dubitante on the point that one obtains bank property "by means of " a fraudulent statement only if that statement is "the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control," ante, at 12.
"Dubious" would have been better, no? But who am I to place such a premium on plain language in the face of a Great Man's Opinion, I suppose.
Scalia becomes fixated on showing that there will be cases where the accused is relatively indifferent to the bank in question but has still committed the crime. But rather than simply describing such a case he goes for analogies. Analogies to his morning coffee run, for example:
Suppose I resolve to purchase (with the two dollars in my billfold) a coffee at the first convenience store I pass on my way to work. I am indifferent to what store that might be. I catch sight of a 7-Eleven, pull in, and, with my cash, buy the drink. That it is a 7-Eleven coffee rather than a Sheetz coffee is "wholly fortuitous," ibid. Still, no one would say that I had not obtained 7-Eleven coffee by means of my two dollars.
It is not so much that he is wrong about this (though it isn't really applicable to Kagan's opinion but, you know) as that it is hard to believe that Scalia consumes convenience store coffee on a regular basis. Not to mention that his "pulling in" to a 7-Eleven on the way to work seems at odds with his vision of riding a "municipal bus" in last week's rock-music analogy.
Anyway, things get darker when Scalia tries to give his example a Dickensian flavor:
Suppose little Bobby falsely tells his mother that he got an A on his weekly spelling test and so deserves an extra cookie after dinner. Mother will not be home for dinner, but she leaves a note for Father: "Bobby gets an extra cookie after dinner tonight..." Dinner wraps up, and Bobby gets his second cookie. Has he obtained it by means of the fib to his mother? Plainly yes, an ordinary English speaker would say. But plainly no under the Court's definition, since the lie did not make its way to the father.
Patriarchal overtones of that last line aside — was Scalia trying to make a statement there about the rise of working mothers, I wonder, I have this image of a clerk being like, "let's switch the gender roles" — this example also only dubiously applies. As Kagan puts it in a snarkback footnote:
(We might counter with some examples of our own, but we fear that would take us down an endless rabbit hole.)
So long as that rabbit hole has some kind of convenience-store coffee, an extra cookie in it and maybe a grano salis in it, Scalia's all good, I guess.
[Image via Getty.]