My Reverse‐​Cyrano Moment Wooing the Supreme Court

The brief is hilarious, and please do not tell my mother I didn’t write it.
March 30, 2014 • Commentary
This article appeared in The Daily Beast on March 30, 2014.

Mom is finally proud! I filed a brief in a Supreme Court case—a “Brief of Amici Curiae” in a case contesting an Ohio law against knowingly or recklessly lying about a political candidate or ballot initiative. (Let me add, as a native Ohioan, that every Ohio political candidate has escaped from a lunatic asylum and all Ohio ballot initiatives are the work of Satan.)

As I was saying, I filed a brief of Amici Curiae. And never mind that, as far as I recall from my D+ in high school Latin, amici curiae means “affably disease‐​free.” I know I filed a brief because it was in the New York Times.

On March 25th Adam Liptak wrote, “P. J. O’Rourke… has filed a funny supporting brief in a Supreme Court case…” This was accompanied by a photo of me taken seven or eight years ago, which made my nose look big, but I do appear youthful. See, Mom, I’m taking care of myself too.

Mr. Liptak, carefully checking reliable sources by not calling me, prefaced his story by noting, “The Supreme Court gives lawyers who argue before it a little guidebook. One tip: ‘Attempts at humor usually fall flat.’” (Ditto in the NYT, Mr. L., if you don’t mind my saying so.) Mom, fortunately, is past the point of asking “Funny ‘ha‐​ha’ or funny ‘odd’?”

The brief is hilarious, and please do not tell my mother I didn’t write it. What I did was sign it. The brief was written by scholars at the Cato Institute, a libertarian think tank, where I hold the position of Mencken Research Fellow (unpaid and worth it). Cato did not ask me to write their brief for the same reason that you do not ask me to perform your appendectomy.

“Okay, I’ll need a knife, and … and … a spoon? Better wash my hands first. And I have to have whiskey because alcohol is both an antiseptic and an anesthetic. Give some to the patient. I’ll take a nip myself.” Etc.

Ilya Shapiro, with a J.D. from the University of Chicago Law School, is Senior Fellow in Constitutional Studies at Cato and editor‐​in‐​chief of the Cato Supreme Court Review. He often files amicus briefs, especially in cases where constitutionally guaranteed rights are imperiled. But these briefs are serious in tone even though Ilya is funny in person.

He’s also self‐​effacing, saying, “There are people who know more about Constitutional law than I do, and there are people who are funnier than I am, but I do occupy the very small area of overlap in that Venn diagram.”

The Venn diagram seemed like the only proper approach to a law that would make you a criminal in Ohio for saying that Buckeye president William Howard Taft was so fat his wife had to grease the doorframe and tell him there was a banana cream pie in the Blue Room to get him into the White House.

The fight‐​a‐​laugh‐​with‐​a‐​laugh brief was Cato Legal Associate Gabriel Latner’s idea. He wrote the first draft. Cato Research Fellow Trevor Burrus added research. And more jokes. Then Ilya Shapiro took over. I was asked to read it and give it my endorsement because I am an expert on being run out of Ohio. Ask my mother.

Politico posted a condensed version of the brief, and I shared the byline with Ilya. On the “Above the Law ” blog David Lat called it the “Best Amicus Brief Ever.” (Albeit that’s a low “bar”—notice how I casually toss in legal jokes now that I’m arguing a case before the Supreme Court.) And a lawyer friend of mine congratulated me on what he said was the first legal brief in history to go viral.

Herewith a sample (and good stuff even if I do say so my not‐​self):

In modern times, “truthiness”—a “truth” asserted “from the gut” or because it “feels right,” without regard to evidence or logic—is also a key part of political discourse…

After all, where would we be without the knowledge that Democrats are pinko‐​communist flag‐​burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot‐​smoking lesbian ATF agents who will steal all the guns and invite the U.N. to take over America?

Voters have to decide whether we’d be better off electing Republicans, those hateful, assault‐​weapon‐​wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies.

(Go here to read the rest.)

Unfortunately the above seems to be in accord with Ohio law as it currently stands. Also unfortunately, if the Cato brief has been influenced by any non‐​lawyer humorist, it’s Stephen Colbert. But I’m not going to put other people to the bother of taking credit. Politics is show business for the ugly and therefore I’m in the entertainment industry. And you don’t let other people take credit in the entertainment industry. It’s just not done.

I mean, what kind of play would Cyrano de Bergerac be if Christian turned out to be full of spontaneous romantic eloquence while courting Roxane in Act IV? “And, Roxy, the person hiding in the shadows under your balcony—that’s just some guy with nothing to say who’s got a big nose.”

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