Jimi and jurisprudence

First it was Chief Justice John Roberts, citing Bob Dylan last month in an opinion involving a dispute between pay-phone companies and long-distance carriers:

The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. "When you got nothing, you got nothing to lose." Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).

(The New York Times reporter Adam Liptak pointed out that Justice Roberts actually fumbled the line, which should read, "When you ain't got nothing, you got nothing to lose.")

But then, as Adam White of Slate's "Convictions" blog pointed out yesterday, Justice Janice Rogers Brown, of the D.C. Circuit, went Roberts one better, introducing an opinion this way:

Forty years ago Jimi Hendrix trilled his plaintive query: “Is this love, baby, or is it … [just] confusion?” Jimi Hendrix, Love or Confusion, on Are You Experienced (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it … just confusion?

White says: Can we all agree that this has gone far enough? For one thing, consider the precedent: Do we really want to be reading opinions in 2025 that quote Jay-Z or Arcade Fire?

Good points, to be sure. But just as interesting is the identity of the author of the Hendrix hat-tip: In a speech at the University of Chicago in 2000, Judge Brown declared that modern Americans live in a state of "slavery" as a result of post-New Deal programs; wished out loud for a return to the pre-1937 understanding of the Constitution, under which almost all worker protections were viewed as affronts to economic liberty; and declared that big government had fostered "a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." In short, she can make Scalia sound like a lefty.

An opponent of debauched American culture is now citing Jimi Hendrix as an authority? (Especially now?) It can now safely be said: Rock's journey from the rebellious, hedonistic fringe to the marble-walled heart of the establishment is complete.

UPDATE: Slate legal blogger Adam White, mentioned above, emailed to remind me of the lyrics to the Hendrix song "If 6 Was 9," which drive home that the songwriter, were he alive, might be surprised by his new respectability: "White collared conservative / flashing down the street, / Pointing their plastic finger at me. / They're hoping soon my kind will drop and die, / But I'm gonna wave my freak flag high, high." Now we've got Federalist Society heroes flying Hendrix's freak flag.