One Man’s Lyric is Another Man’s Law
In Sunday’s New York Times, national legal correspondent Adam Liptak reported the breaking of some serious legal ground over at One First Street NE. Hidden away on page four of Chief Justice Roberts’ dissent in Sprint Communications Co., L. P., et al, v. APCC Services, Inc., et al—-an otherwise mind-numbing case about pay phones and long distance carriers and standing to bring a suit in a federal court— was a quotation from Bob Dylan’s song “Like A Rolling Stone” from the young master’s sixth album, 1965’s Highway 61 Revisited.
That Dylan classic has already been recognized as —and by no less an authority than Greil Marcus— “the greatest record ever made, perhaps, or the greatest record that ever would be made.” Praise from Caesar is praise indeed; but a rock critic, however distinguished, is, well, just a rock critic. Quotation by a Chief Justice in a Supreme Court decision, however, ratchets things up to wholly new levels of distinction.
In the very first paragraph of his dissent (in which his brethren Scalia, Thomas, and Alioto concurred) Chief Justice Roberts gives a hint of things to come when he notes that prior decisions of the Court don’t contradict “what common sense should tell us: There is a legal difference between something and nothing.”
Can you see it hiding there in plain sight? The point just waiting for Bob Dylan’s wisdom to illuminate it and set it free? The Chief Justice takes his time before nailing it down:
Here, respondents are authorized to bring suit on behalf
of the payphone operators, but they have no claim to the
recovery. Indeed, their take is not tied to the recovery in
any way. Respondents receive their compensation based
on the number of payphones and telephone lines operated
by their clients, see App. 198, not based on the measure of
damages ultimately awarded by a court or paid by peti-
tioners as part of a settlement. Respondents received the
assignments only as a result of their willingness to as-
sume the obligation of remitting any recovery to the as-
signors, the payphone operators. That is, after all, the
entire point of the arrangement. The payphone operators
assigned their claims to respondents “for purposes of
collection,” App. to Pet. for Cert. 114a; respondents never
had any share in the amount collected. The absence of
any right to the substantive recovery means that respon-
dents 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).
While Mr. Liptak gives the Chief props for the cite, he expresses some concerns about exactly how accurate and/or apposite it really is.
While the quotation accords with the printed lyrics of the song on Mr. Dylan’s own website, it is different from the words to be found in the presumably Ur text: the record itself. The Chief probably left the fact checking to a clerk who Googled rather than listened. What Mr. Dylan actually sings is:
When you ain’t got nothing, you got nothing to lose.
It’s hard not to agree that this is quite different —in terms of impact if not intent— from the Chief Justice’s quote:
When you got nothing, you got nothing to lose.
While some may see that as a distinction without a difference —or even downright pettifoggery— Mr. Liptak raises a far more serious question about the point the Chief Justice is trying to make with Mr. Dylan’s words.
The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company. (See, e.g., “Me and Bobby McGee.”)
Just because Mr. Liptak expresses it flippantly doesn’t mean that his point isn’t well-taken. (Mr. Dylan and Mr. Chief Justice are not the only ones who can write double negatives.)