Is it just me or has the high court gone a little kooky this week?

Small, imperceptible signs: Justice O'Connor has swapped her workaday frilly Beau Brummel cravat for a jaunty, multicolored silk scarf. Justice Breyer is giggling so hard at himself this morning that he can't finish his questions. In decisions handed down today, they're prohibiting the drug-sniffing-dog roadblocks. They're allowing the drug-addled trucker to drive. And they're hearing the medical marijuana case.

Praise the Lord and pass the crystal meth.

Today's case, City News & Novelty Inc. v. City of Waukesha, holds some early promise of kookiness (City News is a purveyor of adult magazines, dirty movies, and sticky-floored "viewing booths"). The case, sadly, offers no smutty books for the justices to peruse and no porn for them to review. It's a boring, vanilla prior-restraint case, on which the Supremes granted certiorari solely to resolve a split among the federal circuit courts.

A prior restraint is not, by the way, the same doctrine Chief Justice Rehnquist invoked when he advised the networks last night that they may not broadcast oral argument of Friday's Florida recount case. That analysis is covered under the long line of "because" jurisprudence for which there are no case citations.

The Story of Uh-Oh
The first thing you should know about Waukesha (aside from its pronunciation, evidently Walk-e-shaw) is that it involves a Wisconsin adult bookstore that lost its smut-selling license. The bookstore concedes that it violated numerous parts of the city code: It allowed minors to loiter in the store, failed to maintain "an unobstructed view of the booths in the store," and allowed "patrons to engage in sexual acts" inside those booths. So when the city declined to renew City News' annual license, the bookstore did not have much of a substantive defense. So they advanced an argument, claiming the licensing scheme was unconstitutional because it failed to provide "prompt judicial review." Sadly, the constitutional arguments didn't really apply to the facts of this case.

Justice Breyer has a blast with this as he chuckles out a question early in the argument: "You're complaining about X, but X never happened to [your client]. He's out of business on the merits. And he has no plans to go back into business. … It sounds like it should violate some judicial principle [laughing], but I'm not sure which one."

For much of the morning, most of the court grapples with the fact that the petitioner in the case has suffered no harm they might relieve. Nevertheless, as we have learned this week from our aspirants to the White House, you needn't have a real case as long as you have real appellate counsel.

Behind the Green Gore
So, like any other red-blooded American crybaby, City News appealed the city's decision to deny its license, first to the municipality (which affirmed its own decision), and then to the Administrative Review Appeals Board (which affirmed the city's decision), and then to state trial court (which affirmed the city's decision), and then to the Wisconsin Court of Appeals (which, sigh, affirmed the city's decision on all grounds but one), and on to the U.S. Supreme Court. Lesson 1 for Vice President Gore: There is always another bite to be had at that apple as long as someone is willing to bankroll the chewing.

Today even Justice Stevens finds himself questioning Jeff Olson, the attorney for City News, on just this point. "Why isn't this case moot?" he asks. "Isn't your client out of business?" he asks. "Why is he trying to gain licensure for a business he has no intention to engage in?" he asks.