Justice Thurgood Marshall on Bourbon Street
Humorous Deference to Judicial Expertise
Humor by lawyers in arguments before the United States Supreme Court is risky business. The usual rule: only if a justice jokes first. One day in 1982, Assistant Attorney General Gerald Caruso pulled it off, reducing the Court, counsel, and spectators to helpless laughter.
The case was Larkin v. Grendel’s Den. A restaurant challenged a Massachusetts law that gave the governing bodies of schools and churches the power to block the issuance of liquor licenses for premises within a 500-foot radius of the church or school by objecting to the license application. Grendel’s Den, a Cambridge restaurant, applied for a liquor license. A church located 10 feet from the restaurant objected to the application. The license was denied on the basis of the church’s objection. Grendel’s sued the Cambridge and Massachusetts licensing authorities in federal court in Boston, claiming that the law violated the Establishment Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Sherman Antitrust Act. The District Court held that the law was unconstitutional under the Establishment Clause and the Court of Appeals for the First Circuit affirmed.
The Supreme Court held that the law violated the Establishment Clause. The Court stated that the law was not simply a legislative exercise of zoning power but a delegation of power to private, nongovernmental entities—a power ordinarily vested in governmental agencies. The Court acknowledged the valid purpose of the law in protecting schools and churches from the commotion associated with liquor outlets but stated that that purpose may be accomplished by other means. The Court also noted that the churches’ power under the law was standardless, calling for no reasons, findings, or reasoned conclusions, and could be seen as having a “primary” and “principal” effect of advancing religion.
Justice Thurgood Marshall
During his argument on behalf of the Massachusetts Alcoholic Beverages Commission, AAG Caruso was asked by Justice Thurgood Marshall to name the city involved in a similar case decided by a lower federal court. The audio and transcript of the argument reports:
Gerald J. Caruso
It’s never been... well, in the Fifth Circuit, Your Honor, the Fifth Circuit in Big Sandy versus city of--
Thurgood Marshall
It wouldn’t be New Orleans?
Gerald J. Caruso
--No, Your Honor.
Thurgood Marshall
Because they don’t have any closing law down there.
They serve liquor 24 hours a day, every day including Sunday.
Gerald J. Caruso
Your Honor, I’ve never been to New Orleans, so I defer to your knowledge on that.
The audio recording of the argument conveys the long peals of laughter that echoed through the usually somber courtroom. Though the Court seemed inclined to strike down the Massachusetts law, most present agreed that Gerry’s argument had been an artistic success.
