When Judges Wax Eloquent
WASHINGTON — In the buttoned-down US Supreme Court last week, a hint of Groucho Marx hung in the air as Justice Stephen Breyer read his opinion on a gun-carrying case. After consulting many dictionaries, Justice Breyer said with a smile, he decided that "carry" means "carry," whether "it is a gun, a suitcase, or a banana." (Laughter.)
Colorful words, turns of phrase, and original writing are not the stuff of most judges, even the most supreme. Legal rulings, like overdone roast beef, tend to be dry and gray. But sometimes a pulse can be felt in the cadaverous bulk of jurisprudential prose. And June is the time when, in the smithy of the court's soul, language is forged for thousands of judges.
Whether it is Justice Antonin Scalia two weeks ago quoting Cole Porter and Psalms in the same paragraph, or Justice David Souter stating that "Liberty finds no refuge in a jurisprudence of doubt," or the memorable word by Justice John Paul Stevens last term that Congress is not trying to "dragoon" state police, this is the season when courtly written expression reaches a peak. By July the highest legal body in the land wraps up its term and hands down most of its opinions.
So does this mean the nine black robes, writing late at night, let down their hair and light up their computer screens with soulful blasts of calypso prose? Do adjectives become juicy mangoes, verbs guavas? Not exactly. If anything, say court watchers, art and energy of expression in the rulings have been in decline for decades.
"In a court where every ruling deals with tests, standards, or drawing lines, the poetry is lost," argues Lee Epstein of Washington University. "If you go back to [Justices] Oliver Wendell Holmes or Louis Brandeis, you see men thinking about philosophy who were genuine writers."
Still, the high court has consistently bequeathed phrases that meld into the household lexicon of Americans. "Shouting fire in a crowded theater," and "clear and present danger" come from Supreme Court opinions. The mantra, "You have the right to remain silent ..." comes from the Miranda ruling designed to protect the rights of people who are arrested.
You may not know in the abstract what you think or believe - but "you know it when you see it," thanks to Justice Potter Stewart's phrase on pornography. To act with "all deliberate speed" originates in the landmark 1954 Brown decision on school desegregation.
Expressive prose tends to give character to rulings. But nearly by definition, majority opinions, especially on the Rehnquist court, have been less expressive. Passion and bon mots are found more in sharp dissents, where justices, often writing alone, can be righteously indignant or quirky.
Holding a five-vote majority on the divided Rehnquist court means language remains pedestrian and safe. The memorable phrases out of majority opinions tend to be magisterial or sublime - and from another era.
Justice Robert Jackson, for example, upholding the religious right not to salute the flag, states: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox ..." Or this from Justice Brandeis: "If we would guide by the light of reason, we must let our minds be bold." That light, in turn, would doubtless not shine through what Justice William O. Douglas colorfully called "the miserable merchants of unwanted ideas."
The exception on the Rehnquist court tends to be either Justice Scalia or David Souter. The former, in a much-repeated concurrence several years ago, refers to a line of legal analysis as "like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried."
Dissents allow alternative views and conscience to lie more openly on the table. By the 1980s Justice William Brennan, for example, was in a minority. In Hazelwood, a high school newspaper case, he wrote that letting a principal edit the paper "will convert our schools into enclaves of totalitarianism that stifle the free mind at its source." Justice Thurgood Marshall in a 1991 dissent to a ruling that allows "victim impact" statements in court sentencing argues that, "Power, not reason, is the new currency of this Court's decisionmaking."
Justice Harry Blackmun began to stemwind in dissent before retiring in 1994. He found the court "casting into darkness the hopes and visions of every woman ..." when his Roe v. Wade was threatened in 1989. As the court began regularly denying death-penalty appeals, Blackmun would "no longer tinker with the machinery of death."
Much innovative writing comes from lower courts. Liberal jurist Stephen Reinhardt of the US Ninth Circuit Court of Appeals recently included most of Arlo Guthrie's ballad "Alice's Restaurant" in an opinion dealing with aggressive police action. The conservative Alex Kozinski, Judge Reinhardt's nemesis on the Ninth, is also a brilliant writer: In a 1990 film industry ruling, Judge Kozinski buried the titles of movies in nearly every sentence. (It "was not foul play," "making all the right moves," "watched the easy money roll in," and "The Justice Department ... [rescued] this platoon of Goliaths from a single David.")
The all-time pithiest jurist was Oliver Wendell Holmes. He wrote 873 opinions, the most ever, and kept each of them under five pages. Holmes blended wit, new ideas, and an evolving sense of law: "A word is not a crystal, transparent and unchanging, but the skin of a thought."
The noted Felix Frankfurter spoke of a wrong law as "a horse soon curried," called reapportionment "a political thicket," and argued that "there is not a judicial remedy for every political mischief."
Serious court watchers lament a loss of vibrant prose. Reasons for reliance on technical jargon are many. Earlier justices were weaned in print-centered cultures, and often had broad experience and stature outside the law.
Today's justices are professionals who rarely stray from legal circles. Again, issues of race, religion, conscience, and free expression send jurists to the ramparts; the court today hears smaller gauge questions. Too, the 19th century was more literary, idealistic, steeped in stories, innocent perhaps, about what an opinion could say and be. Wayne McIntosh of the University of Maryland thinks that more clerks are writing rulings now, and that they take fewer rhetorical risks.
Colorful prose does not always make the final text - maybe due to judicial restraint. In a May ruling on whether Ellis Island belonged to New York or New Jersey, Justice Stephen Breyer edited these lines out: "I am forced to conclude that my grandmother did not land in New York, as she likely thought. She landed in New Jersey, first stop on her way to St. Paul and eventually to San Francisco - in Minnesota and California respectively, I sincerely hope."