Figments of imagination

A-Nu could blog for days about the judicial preoccupation with the Garden of Eden. Judges are obsessed with entire array of characters and props: Adam, Eve, God, Satan, the apple, the serpent. What does it all signify? A longing for a simpler, more innocent time? A subconscious desire to blame everything on women? A mass judicial off-season craving for a tart juicy Macintosh?

For the sake of not biting off more than she can chew, however, A-Nu chooses to limit today’s post to a single corner of the garden: the much-vaunted fig leaf. For the most part, A-Nu regards this particular judicial fetish with approval and affection. She downright adores the many possibilities created by the imagery of the fig leaf and all its associations. A well-placed -- so to speak -- comparison of a particular argument to a fig leaf serves the dual purpose of pointing out the insufficiencies the argument while, more subtly, making the person who made the argument look silly.

Take, for example, Supreme Court's recent decision in CBOCS West, Inc. v. Humphries, 128 U.S. 1851 (May 27, 2008), which acknowledged legal recourse for employees who suffered retaliatory firing. A-Nu, however, found herself preoccupied with the evocative imagery of Justice Thomas' dissent: "[T]he Court today," Thomas wrote, "retreats behind the figleaf of ersatz stare decisis." Although A-Nu celebrates the Court's decision to accord rights to wronged workers, she cannot help but snigger at the mental image of the unclothed Justices Breyer, Souter, Ginsburg, Kennedy, Roberts, Alito, and Stevens collectively cowering behind a single (presumably large) fig leaf. She therefore applauds Justice Thomas's metaphorical triumph: after all, when one's argument is a little thin on the merits, and one is about to lose 7-2 anyway, a literary victory is certainly better than none at all.

Such fig-leaf-themed swipes by unhappy non-majority writers have blossomed in the Court in recent years. See, e.g., League of Latin American Citizens v. Perry, 548 U.S. 399, --- n.* (Roberts, J., dissenting in part) ("The majority's fig leaf . . . is to note the disparate needs and interests of these populations."); Stenberg v. Carhart, 530 U.S. 914, 1013 (Thomas, J., dissenting) ("The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States."); City of Erie v. Pap's A.M., 529 U.S. 277, 307 (2000) (Scalia, J., concurring in the judgment) (in a case involving strippers, proclaiming that "[t]oday the Court would appear to drop even this fig leaf" with respect to prior requirements to avoiding mootness).

But the fig leaf theme is hardly unique to the Supreme Court. A-Nu has long observed Judge Posner’s literary love affair with the fig leaf. See, e.g., Pryor v. Seyfarth, Shaw, 212 F.3d 976 (7th Cir. 2000); United States v. Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996). A personal favorite of hers is Pontarelli, Inc. v. City of Chicago, 929 F.3d 339, 342 (7th Cir. 1991), in which Posner extends the conceit by observing that “[f]igleaves are cheap; why therefore would a state or municipality ever fail to include a polite bow toward the public interest when it passed a measure that would otherwise stand exposed as a product of naked interest-group politics?” (emphasis A-Nu's).

Most memorably, in Miller v. City of South Bend, 904 F.2d 1081 (7th Cir. 1990) (a challenge brought by nude strip joints to an Indiana public indecency statute), Posner ruminates: "Because the dancers at the Kitty Kat Lounge are not professional dancers, because three of the four dances were not choreographed, because the music to which they dance is canned, and because the dancers sell drinks to the customers afterward, it is tempting to suppose that the ‘expressive elements of their ‘performance’ are phony – that the dance and the music are figleaves to conceal the absence of figleaves. Probably the supposition is erroneous; certainly it is not backed by evidence." Subtly, therefore, he accuses the more prudish dissenters of being overly influenced by the element of nudity (i.e., the absence of literal figleaves) into believing, wrongly, that the other elements of the performance are metaphorical figleaves.

But Judge Evans offers Posner a taste of his own medicine in his dissent in Crawford v. Marion County Election Board, 472 F.3d 949, 954 (7th Cir. 2007), which begins: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election day turnout by certain folks believed to skew democratic,” followed, not two paragraphs later, with a reference to the “fig leaf of respectability” – preventing voter fraud – ostensibly motivating the law. A-Nu thinks that the image of the legendary Posner fumbling around with bushes and fig leaves is enough to make his attempt to justify the voter ID law look at least a little ridiculous, and she also thinks may be exactly what the notably witty Judge Evans intended.