Ripe for review

Just go with A-Nu on this one: she has been noticing for quite some time that the federal judiciary is a tad obsessed with fruit, and feels that this inexplicably unexamined trend could stand a bit of investigation.

Most obviously, the Supreme Court has created an entire fruit-themed doctrine: that of the "fruit of the poisonous tree," which requires the exclusion of evidence (i.e., the fruit) obtained as a result of evidence that was itself illegally obtained (i.e., plucked from the poisonous tree). The Supreme Court first alluded to the doctrine in 1942 (see Goldstein v. United States, 316 U.S. 114, 126 (1942) (Roberts, J.)), but, tragically, the judiciary has made little use of the doctrine as a literary device.

True, a few plum examples may be found. See, e.g., Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000) (McKeown, J., dissenting) (claiming that certain FoPT evidence should have been excluded because "[i]n this instance the apple does not fall far from the tree"); McSurely v. McClellan, 473 F.2d 1178, 1201 (D.C. Cir. 1975) (Matthews, J.) ("While courts may refuse to allow their criminal processes to become tainted by eating 'the fruit of the poisonous tree,' it would be folly to forbid Congressional knowledge that bad apples exist."). But sadly, such instances are the exception rather than the rule, though not for lack of judicial opportunities. Indeed, A-Nu wonders how the judges in United States v. Apple, 915 F.2d 899 (4th Cir. 1990), and United States v. Berry, 670 F.2d 583 (5th Cir. 1982) -- both FoPT cases -- managed to refrain from even a single fruit-related double entendre. A-Nu theorizes that this is what is meant by judicial restraint. But even while she marvels at the self-control of Judges Phillips and Johnson, she simultaneously wonders whether it would have been so very improper for these august figures to enliven their dogged thirty-page doctrinal analyses with a fruit-related pun or two. ("Binding precedent requires us to exclude from our courtroom the fruits that law enforcement has harvested illegally -- excepting, of course, Apple herself.")

Other fruit-related references, however, abound. Most recently, in Department of Revenue of Kentucky v. Davis, 128 S. Ct. 1801, 1821 (May 19, 2008), Justice Scalia's concurrence in part argues for abandoning Pike balancing altogether, likening what he views as a "quintessentially legislative enterprise" to "deciding whether three apples are better than six tangerines." (Sadly for those who might wish to send him a holiday basket, he fails to clarify which fruit he views as a burden and which a benefit.) And in his dissent in the notorious City of Erie v. Pap's A.M., 529 U.S. 277, 325 (2000), Judge Stevens criticizes the majority for ignoring the distinction between cases dealing with the "secondary effects" of speech and cases in which strong government interest justify "incidental burdens" on speech: "One can think of an apple and an orange at the same time; that does not turn them into the same fruit."

Judge Selya, noted fruit connoisseur of the First Circuit, has authored around 120 fruit-referential opinions (averaging more than five each year of his twenty-two-year appellate tenure). In Conward v. Cambridge School Committee, 171 F.3d 12, 20 (1st Cir. 1999), for instance, he serves up a veritable smoothie in a disparate treatment race discrimination case. Explaining that the plaintiff must show that others similar situated to him were treated differently by an employer, Selya observes that "apples should be compared with apples"; citing differences between plaintiff and his proffered comparison points, however, Selya notes that the plaintiff "foreswore apples and presented the district court with two persimmons and a pear." Likewise, a fraud/misrepresentation suit against a college, in which plaintiffs presented only limited evidence of the school's shortcomings, engendered Selya's sage observation: "Showing that one tree has borne no fruit does not prove that an entire apple orchard is barren." Ambrose v. New England Assoc. of Schs. & Colls., 252 F.3d 488, 497 (1st Cir. 2001).

Judges not infrequently refer to making lemonade from lemons -- mostly in the context of pointing out that parties have failed to convert bad arguments into good ones. See, e.g., HA2003 Liquidating Trust v. Credit Suisse Securities, 517 F.3d 454, 458 (7th Cir. 2008) (Easterbrook, J.). Judge Kozinski, during his youthful gallivanting on the Court of Claims, went the opposite route, observing that attempting to disentangle the litigation history of a complex case was "not unlike trying to make lemons out of lemonade." Florida Rock Indus. v. United States, 9 Ct. Cl. 285, 289 (Ct. Cl. 1985). But while A-Nu lauds these citrusy efforts by the judiciary, she deeply regrets that (at least as far as she can discern from semi-diligent searching), not a single judge has employed the lemonade-from-lemons trope in conjunction with a certain seminal Establishment Clause case.

A-Nu could go on and on, and perhaps she will in a later post, but she feels no need to scrape the bottom of the barrel just now. She hopes, however, that her brief foray into fruit jurisprudence will inspire more widespread examination of this sorely neglected topic.