Easy Cases Make Good Law?

The Washington Post and Forbes reported on how five US Supreme Court justices recused themselves on a copyright infringement case.

Four of those justices have book deals with Penguin Random House, a party in the case. There’s no obvious reason for the fifth justice’s decision, but people suspect some similar financial interest.

Some court observers saw these justices’ choice as an indication that they were paying more attention to ethical issues. Others saw danger in how many justices have income from book sales, potentially making it impossible for them to rule ethically about publishing law.

I have different thoughts. First, book income pales in comparison to the other outside income justices receive for appearing at exclusive legal conferences, especially compared to the work involved.

Furthermore, Justice Clarence Thomas has received millions of dollars in value through vacations, vehicles, and other presents for no work at all, and then repeatedly failed to disclose those gifts.

After the Thomas scandals broke, conservatives tried to build up Justice Sonia Sotomayor’s book deal into a comparable brouhaha. Justices had been publishing books for years before that (Thomas among them) without attracting so much criticism.

So while I do see the potential ethical problems when judges have financial interests aligned with large media companies, I don’t think that’s at the top of the list of what needs to be fixed at the Supreme Court.

Second, I looked at the case that the five justices recused from, Baker v. Coates et al., through this PDF. A man decided that Ta-Nehisi Coates had plagiarized his self-published book and sued not only Coates but lots of other people and corporations involved in other things Coates has written: The Atlantic Monthly, Disney (as owner of Marvel Comics), Oprah Winfrey and Apple (for broadcasting an interview), and so on. 

The filing includes pages and pages of side-by-side comparisons between Coates’s writing and the plaintiff’s—which show very little similarity. Unlike some plagiarism claims that make the news with obvious parallels, such as Pete Hegseth’s senior thesis, this one reveals no smoking guns. It doesn’t even offer water pistols.

A lower court dismissed that claim with prejudice—i.e., totally swatted it away. An appeals court upheld that decision. The Supreme Court’s inaction cements that result, but I think it’s extremely unlikely the court would have accepted this case anyway. The justices probably wanted nothing to do with it.

“Seeing all those curls lying on the floor”

Frances Hodgson Burnett finished Little Lord Fauntleroy with young Cedric still wearing the same clothes and hairstyle as when he started.

For boys who disliked that book’s fashions, however, the moment a lad could have his “love-locks” cut became a rite of passage. It was akin to transitioning from skirts to breeches, and later from breeches to long pants. It signaled not only growing older but also moving away from maternal influence.

The slapstick comedian Moe Howard described such a moment in his memoir, Moe Howard and the Three Stooges, published posthumously in 1977. Born in 1897 as Moses Horwitz, he recalled having ringlets as a boy in elementary school:

My school career began in September 1903, when I was six. Whenever I attended school—which in later years wasn’t very often—I was constantly fighting. I fought on my way to school, in school, and on my way home. As I said before, my hair had grown very long, and every school day I would awaken a half hour before everyone else so my mother could wind finger curls through my hair; they reached almost to my shoulders. There were about twenty of them in all, and they resembled a bunch of cigars stuck on my head. Knowing that it was my mother’s greatest delight to spend that half hour arranging my curls, I didn’t complain. But soon it became the battle of my school career.

After recounting lots of fights over how “girly” he looked, Howard recalled meeting a couple of boys who befriended him anyway—but still didn’t like the hairstyle.

I gazed into Donald’s mirror and saw my curls hanging down, a good ten inches long. I glanced over at Donald and Rusty, two normal-looking young boys. I looked in the mirror again, and then something on Don’s dresser caught my eye. A shiny object with black enamel handles. I looked at myself again, trying to create one last impression.

I grabbed the scissors and, with my eyes closed, began to circle my head, clipping curls all the way around. I didn’t dare to look at the floor to see what had fallen. When I finished, I dropped the scissors, afraid to look at myself. Tears quietly flowed down my cheeks.

When I finally opened my eyes, I found Rusty and Don pointing at me and laughing hysterically. I couldn’t resist looking into the mirror. I choked up. There wasn’t a laugh in me. There in the mirror I caught sight of the haircut that was to make me famous in the 1920s. I laughed, then I cried, and I shuddered seeing all those curls lying on the floor and realizing that I had destroyed one of my mother’s few pleasures. . . .

My brother Shemp spotted me first. He let out a war whoop. “Take a look at your son with the fright wig. He thinks it’s Halloween, and what do you know, it’s not a wig; it’s a brand-new haircut.” Then Mother, Irving, and Jack came in. They stared speechless for a moment. Then Mother looked at me. I looked at her and the tears welled up in my eyes, then the tears welled up in hers. She said softly, “Thank God you did it. I didn’t have the courage.”

Thomas Wolfe’s Look Homeward, Angel offers a semi-fictional treatment of the same transition. The autobiographical novel by and about a boy born in 1900 in North Carolina says:

Eliza had allowed his hair to grow long; she wound it around her finger every morning into fat Fauntleroy curls: the agony and humiliation it caused him was horrible, but she was unable or unwilling to understand it, and mouth-pursingly thoughtful and stubborn to all solicitation to cut it.

And a few years and many pages later:

He was now in one of the upper grades of grammar school, he was one of the Big Boys. His hair had been cut when he was nine years old, after a bitter siege against Eliza’s obstinacy. He no longer suffered because of the curls.

TV Tropes lists many female examples of the Important Haircut in recent books, movies, and other entertainment. But in the late nineteenth and early twentieth century, that passage was just as important for many boys.

“The Fauntleroy period had set in”

The hairstyle and costume popularized by Frances Hodgson Burnett’s Little Lord Fauntleroy, as illustrated by Reginald B. Birch, didn’t remain fashionable for very long.

But it remained vivid in the memory of Americans who lived through the 1880s and ’90s. Indeed, that look for boys became an icon of the Gilded Age.

For instance, Booth Tarkington (1869–1946) published The Magnificent Ambersons in 1918. This passage, looking back on life in Indianapolis three decades before, describes Georgie Minafer as a boy:

…the Fauntleroy period had set in, and Georgie’s mother had so poor an eye for appropriate things, where Georgie was concerned, that she dressed him according to the doctrine of that school in boy decoration. Not only did he wear a silk sash, and silk stockings, and a broad lace collar, with his little black velvet suit: he had long brown curls, and often came home with burrs in them.

Except upon the surface (which was not his own work, but his mother’s) Georgie bore no vivid resemblance to the fabulous little Cedric. The storied boy’s famous “Lean on me, grandfather,” would have been difficult to imagine upon the lips of Georgie. A month after his ninth birthday anniversary, when the Major gave him his pony, he had already become acquainted with the toughest boys in various distant parts of the town, and had convinced them that the toughness of a rich little boy with long curls might be considered in many respects superior to their own. . . .

Thus, on a summer afternoon, a strange boy, sitting bored upon the gate-post of the Reverend Malloch Smith, beheld George Amberson Minafer rapidly approaching on his white pony, and was impelled by bitterness to shout: “Shoot the ole jackass! Look at the girly curls! Say, bub, where’d you steal your mother’s ole sash!”

“Your sister stole it for me!” Georgie instantly replied, checking the pony. “She stole it off our clo’es-line an’ gave it to me.”

“You go get your hair cut!” said the stranger hotly. “Yah! I haven’t got any sister!”

“I know you haven’t at home,” Georgie responded. “I mean the one that’s in jail.”

When Orson Welles adapted Tarkington’s novel into a movie, his script kept that deathless dialogue exactly. It also specified that that scene took place in 1885, thus slightly before Frances Hodgson Burnett’s novel appeared. Bobby Cooper played young Georgie, as shown above.

Tarkington created another portrait of childhood in Penrod and its sequels, but he set those books a generation later, and none of the boys has Fauntleroy curls.

The Little Lord’s “Love-Locks”

Frances Hodgson Burnett’s Little Lord Fauntleroy started to appear in St. Nicholas Magazine in 1885, then came out in book form in 1886. It was illustrated by Reginald B. Birch.

Cedric, the title character, was defined by a distinctive look:

Mary…was proud of his graceful, strong little body and his pretty manners, and especially proud of the bright curly hair which waved over his forehead and fell in charming love-locks on his shoulders. She was willing to work early and late to help his mamma make his small suits and keep them in order.

“’Ristycratic, is it?” she would say. “Faith, an’ I’d loike to see the choild on Fifth Avey-NOO as looks loike him an’ shteps out as handsome as himself. An’ ivvery man, woman, and choild lookin’ afther him in his bit of a black velvet skirt made out of the misthress’s ould gownd; an’ his little head up, an’ his curly hair flyin’ an' shinin’. It’s loike a young lord he looks.”

Soon the name “Fauntleroy” was applied to the outfit Birch pictured. “Short tailored jacket, knee-length trousers, rather frilly shirt, wide collar with rounded corners, or large loose bow” is how Merriam Webster defines the adjective “Fauntleroy” now.

The long “love-locks on his shoulders” were just as much part of this look for upper-class boys. Indeed, within three years after Burnett’s story appearing, Harper’s Young People published an anecdote about “Little Rex, who is six years old, and has a pretty head of ‘Little Lord Fauntleroy’ curls.”

Soon there was a backlash. By 1893 the University of North Carolina Magazine started a positive review of Burnett’s new story collection with a nod to “the little Chapel Hill boy who wanted to cut off Lord Fauntleroy's curls and roll him in the dirt until he made of him a real boy.”