Remembering Justice Scalia: Broccoli, Apple Sauce, Fortune Cookies, and Paper Bags

February 20th, 2016

Some of Justice Scalia’s fans had a sense of humor that I know he would appreciate, leaving him–among other items, Broccoli, Apple Sauce, Fortune Cookies, and Paper Bags.


Not that you need a clue, but I will explain the references.

In NFIB v. Sebelius, during oral arguments, he asked Solicitor General Donald Verrilli:

“Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli?”

In King v. Burwell, he described the majority’s reasoning as “pure applesauce.”

In Obergefell v. Hodges, he wrote:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Well done clerks.