John Paul Stevens’ Restraint

After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir.  After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.  Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 – 48 Term when Fred Vinson was Chief Justice.  Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court.  It was during this time, however, that he argued his only case before the Court.  In Five Chiefs, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices.  Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that “Chief Justice Warren could have shaken my hand had he wished.”

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.

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Poetry in the Law

Shortly before Christmas, I came across a notice that Pennsylvania Supreme Court Justice Michael Eakin had written an opinion in verse. In Commonwealth v. Goodson, the court overturned the defendant’s conviction for insurance fraud in an opinion penned entirely in heterometric sexains. Some of the lines are clunky, the rhymes forced: “And thus the matter terminated, or so one might have thought, / but that was not to be, when Goodson’s later schemes were caught.” Syntactical imprecision is not necessarily a fault in poetry, but even as prose the sentence is ungainly and its meaning, though not overly obscure, suffers from vagueness. Nevertheless, the opinion is fairly successful as pastiche and its legal analysis is serviceable.

This was not Justice Eakin’s first foray into judicial versifying. While on the Superior Court of Pennsylvania he composed quatrains for a couple of opinions. In Busch v. Busch (1999) the entire opinion is in verse except for a recitation of the facts, and in Liddle v. Scholze (2001), several stanzas merely bookend more conventional text. Liddle is in many ways the more interesting case, as it deals with the sale of breeding emus. Appellant sued for breach of contract when they didn’t – breed, that is – but lost because she did not take advantage of the contractual remedy in a timely fashion and was thus presumed to have waived it. Perhaps she should have pursued a different cause of action and argued for rescission of the sale on the grounds Scholze was selling an unregistered security, under an investment contract theory. But this is all by the by. In Liddle, Eakin achieves a Coleridgean tone with his first line, “The emu’s a bird quite large and stately . . . .”

Elevated to the Pennsylvania Supreme Court in 2001, Eakin continues to occasionally express himself in verse from the bench. He is not unique in this regard. There are many examples of judicial prosody and even the tax court has tried its hand at the form. See Jenkins v. Comm’r, 47 T.C.M. (CCH) 238 (1983), “Ode to Conway Twitty.” The practice has not been immune from criticism, however. The main thrust of the criticism is that “rhymed verse trivializes the seriousness of the matter before the court and demeans the litigants.” Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597, 606-607 (2003). It has also been impugned as a waste of taxpayer money and for its tendency to produce not only bad law, but execrable poetry.

These criticisms strike me as not wholly persuasive. The assertion that rhymed verse is more likely to demean than other forms of writing is equivocal at best – on the one hand you have the aubade, on the other gangsta rap. It is true that rhymed judicial opinions are often jocular in tone. Justice Eakin admits he tends to use the form when “the subject of the case call[s] for a little grin here or there.” But could it be that some matters, though legally significant, are trivial in a broader sense? And if this is so, does the appearance of judicial propriety require learned men to pretend otherwise? Benjamin Cardozo, in Murphy v. Steeplechase Amusement Company (1929), is clearly having verbal fun. “The antics of the clown are not the paces of the cloistered cleric.” Is he trivializing the subject matter of the suit? Sure, but in a principled way.

As to the respect litigants are due, jurists have not been restrained in the exercise of their derision by prose. Oliver Wendell Holmes’ opinion in Buck v. Bell (1927) comes to mind. His disdain for the “feeble-minded” is palpable throughout the opinion and culminates in the grotesque: “Three generations of imbeciles are enough.” On the other hand, there are some parties whose actions are so reprehensible, or whose arguments are so frivolous, that they deserve censure; the law, in fact, demands it. In such cases, do they not forfeit the court’s respect? In any event, an adversarial system of justice inevitably demeans the loser in the sense that their dignity is reduced, at least to the extent their loss decreases their status.

In short, I would contend that there is nothing inherently wrong about an opinion that takes liberties with form, as long as it seriously resolves the issue before the court. The idea that a well-reasoned resolution can only be expressed in certain sober tones is belied by the many instances where wit and humor can reveal the weakness of a position or provide a more fitting context for the dispute. Judge Posner, for example, is a master of the well-placed barb that explodes an untenable position. In 2008, Chief Justice Roberts’ recitation of facts in Pennsylvania v. Dunlap is written in the style of a detective novel of the 30’s or 40’s. He described the neighborhood in which the alleged offense occurred as “[t]ough as a three-dollar steak.”

What is problematic about Eakin’s poetic opinions, perhaps, is their slavish insistence on rhyme. He relegates the form to those cases that are after all not very important, those one merely “grins” at. But if one takes seriously the claim that law is essentially a literary activity, then poetry, as the sine qua non of all such activity, is capable of being put to more varied uses. Would an opinion in blank verse on the legal consequences that flow from attempted murder, such as can be found in the Merchant of Venice, necessarily be out of place? Free verse seems particularly apt for intellectual property cases.

Certainly, given the traditions of the law, there is no need to fear that writing opinions in verse in any of its forms is likely to become commonplace. And there are undoubtedly good reasons for this. If nothing else, some uniformity of approach is indispensable to an efficient process. I am reminded of the saying that behind every lawyer is a failed poet, however, and wonder if those that would seek to prohibit its use by judges in the performance of their official duties needlessly restrict the possibilities of legal analysis and stifle its animating spirit. Perhaps that is overstating the case, but I could not resist a plug for poetry.

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