The Quotable Jurist

Yale Journal of Law & the Humanities Volume 14 | Issue 2 Article 7 January 2002 The Quotable Jurist Fred R. Shapiro Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Fred R. Shapiro, The Quotable Jurist, 14 Yale J.L. & Human. (2002). Available at: https://digitalcommons.law.yale.edu/yjlh/vol14/iss2/7 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Shapiro: The Quotable Jurist The Quotable Jurist Christopher A. Anzalone, The Encyclopedia of Supreme Court Quotations.Armonk, N.Y.: M.E. Sharpe, 2000. Pp. xiv, 395. $83.95. Fred R. Shapiro* Full Disclosure: I edited The Oxford Dictionaryof American Legal Quotations.' The book being reviewed, Encyclopedia of Supreme Court Quotationsby Christopher A. Anzalone,2 might be considered a work competing with my own volume, so readers should take what I have to say with a grain of salt. "Legal quotation" is a somewhat oxymoronic concept when applied to case law. Judicial discourse is long-winded, and the need for precision or pseudo-precision is usually valued far more highly than literary qualities are by judicial writers. Looking at American sources, most quotable authors on law-related subjects have not been judges but rather academics (Karl Llewellyn, Fred Rodell, Alexander Bickel, John Chipman Gray), statesmen (Thomas Jefferson, Abraham Lincoln, Benjamin Franklin, Alexander Hamilton, James Madison, Daniel Webster), literary figures (H.L. Mencken, Ralph Waldo Emerson, Henry David Thoreau, James Fenimore Cooper, Herman Melville), or satirists (Mark Twain, Ambrose Bierce, Will Rogers, Finley Peter Dunne). Among judges, four individuals (Oliver Wendell Holmes, Jr., Robert Jackson, Learned Hand, and Benjamin Cardozo) account for a very high percentage of all quotable passages in opinions, and if these four were excluded, the landscape would be an extremely barren one. * Associate Librarian for Public Services and Lecturer in Legal Research, Yale Law School; Editor, Yale Dictionaryof Quotations (forthcoming). 1. Fred R. Shapiro, The Oxford Dictionary of American Legal Quotations (New York: Oxford University Press, 1993). 2. Christopher A. Anzalone, Encyclopedia of Supreme Court Quotations (Armonk, N.Y.: M. E. Sharpe, 2000). Published by Yale Law School Legal Scholarship Repository, 2002 1 Yale Journal of Law & the Humanities, Vol. 14, Iss. 2 [2002], Art. 7 Yale Journal of Law & the Humanities [Vol. 14:455 The paucity of good judicial quotes has become more pronounced in recent decades. Some of the explanation lies in the fact that the last of the "Big Four" died in 1961. Some lies in the tendency of recent opinions to be ghost-written by clerks who are unlikely to insert bold or humorous pronouncements in their boss's decisions. Some may lie in a general decline of modern art and thought. Conservative court-watchers champion Antonin Scalia as a titan of eloquence on the contemporary United States Supreme Court, but I believe that they are influenced by partisanship and today's greatly lowered standards. Consider this quip, widely considered to be one of Scalia's best: "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing.... But this wolf comes as a wolf."3 Not exactly one for the ages, in my view. I was pleased to learn of the publication of Encyclopedia of Supreme Court Quotations. Researchers and students of the Supreme Court need all the help they can get in identifying the noteworthy sound-bites from that Court's jurisprudence. I started to get nervous, however, when I read Anzalone's Preface, where I came across the following passage: Each year the Court decides hundreds of legal controversies. The Court has been in existence for over two hundred years. Decisions generate an opinion of the Court (majority opinion); depending upon agreement of the nine members of the Court, an outcome may also generate a flurry of concurring opinions and dissents-all of which constitute the universe of potential excerpts. The calculus is staggering; we could have easily selected a hundred thousand quotes. Is it not an inspiring notion that the total universe of excerpts is so overwhelming that great efforts were made to pare the number down to a manageable 900? This question itself should fill the reader and citizen with pride in the Court's place in American history.4 In reality, there are probably not a hundred thousand truly good quotes in all of recorded world culture, much less in the eloquencechallenged pages of the United States Reports. The difficulty is to find 900 examples of "inherent beauty, literary quality, profound philosophy" (Anzalone's professed criteria)5 in those reports, not to winnow an embarrassment of riches. 3. 4. 5. Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). Anzalone, xi-xii. Anzalone, xii. https://digitalcommons.law.yale.edu/yjlh/vol14/iss2/7 2 Shapiro: The Quotable Jurist 20021 Shapiro I was now very curious as to what Anzalone's notion of a good quotation was, and also as to the quality of his research. Did he do a thorough job of finding the truly outstanding Supreme Court passages? In order to test this, I made a list, based on my own extensive study of legal quotations, of the preeminent sayings from the opinions of Justice Robert H. Jackson. The following is the test list: [1] The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943). [2] Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. Barnette, 319 U.S. at 641 (1943). [31 The case is made difficult, not because the principles of its decision are obscure, but because the flag involved is our own.... To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. Barnette,319 U.S. at 641 (1943). [4] But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart (...truncated)