A suggestion for the family of Supreme Court Justice Antonin Scalia: If you are stumped on what to give him for Christmas, buy him a Magic 8 Ball.
Scalia made it clear during oral arguments Monday that he had never heard of the fortune-telling spherical toy which, when shaken, gives random answers such as "outlook good" or "without a doubt" to random questions. It has been marketed in its current form since 1950.
The revelation came in response to Justice Stephen Breyer during arguments in Oxford Health Plans v. Sutter. A key issue in the case is how much deference an arbitrator should be given in the interpretation of an arbitration clause—in this case figuring out whether the clause allows or precludes class action arbitration.
Testing the outer limits of the deference, Breyer posited that the arbitrator "gets his Magic 8 Ball out and, whatever it is, he says, that’s what it means." Scalia interjected that the arbitrator’s interpretation has to be plausible, but he seemed mystified as Breyer mentioned the Magic 8 Ball three more times. Breyer asked what if the arbitrator’s ruling "isn’t quite Magic 8 Ball?"
Scalia, who often jousts with Breyer during arguments, could stay silent no longer. "What’s a Magic 8 Ball?" he exclaimed. "I don’t know what you are talking about." As laughter erupted in the court chamber, Breyer struggled to describe what it is.
"A Magic 8 Ball is, you have—that’s a little thing, it’s the—it’s a non-sportsman’s equivalent of throwing darts," Breyer said, provoking more quizzical looks from Scalia and Chief Justice John Roberts Jr. But the definition was close enough, and the oral argument continued.
Tony Mauro can be contacted at firstname.lastname@example.org.