"What do you think about Satan?" That's not a typical question at the Supreme Court, but those words were indeed uttered by Justice Scalia on January 10. The question drew a near belly laugh from the packed gallery, leaving one to wonder whether the Devil has become nothing more than a joke in modern America.
I have been a lawyer in Washington, D.C., for over eight years now, but this was my first time to witness an argument before the Supreme Court. I exited the subway near the House of Representatives and was anxiously ushered across the street as multiple sirens roared in response to a threat that, thankfully, never fully materialized. I then walked along toward the Court on a Capitol Hill that was donned in flags at half mast.
I came having worked a bit on a matter that was to be heard second, but I was advised to sit through the first case to guarantee a seat. That first case involved the disclosure standard required of companies when faced with potentially bad (even if unfounded) news. Specifically, the company that makes the Zicam cold remedy did not disclose what an Arizona district court judge later held to be "statistically insignificant" reports that suggested some users of the product might be losing their sense of smell. The story eventually broke on Good Morning America and the stock tanked.
Satan showed up when the justices, as they often do, sought to push the bounds of each side's arguments with extreme hypothetical questions. Would unfounded rumors of satanic connections (such as have dogged Procter & Gamble for years) be material enough to warrant a formal disclosure under the Court's test addressing information that a "reasonable shareholder" would need to know? It's not an entirely crazy question: such ...