Supreme Court justices have been turning heads this month with their choice of words, as well as with their landmark rulings.
June decisions have given us Justice Elena Kagan’s bountiful Spiderman allusions, Chief Justice John Roberts’ exclamation of “What chumps!” and Justice Antonin Scalia’s exhortation to “Ask the nearest hippie.”
From the beautifully written and widely shared final paragraph of Justice Anthony Kennedy’s opinion legalizing same-sex marriage to the more inventive verbiage seen in many of this year’s decisions, Supreme Court justices have done some exceptional wordsmithing. Associate Justice Antonin Scalia also drew attention with such phrases as “pure applesauce” and “jiggery-pokery” adding bite to his dissenting opinions.
But such verbal pyrotechnics are not, as the justices might say, without precedent. Over the years, members of this court and their predecessors have often taken pride in their language. Scalia, in particular, has been known for his rhetorical stylings, using the words “tutti-frutti” (Sykes v. United States) “argle-bargle” (United States v. Windsor) and “ScotusCare” (King v. Burwell).
Scalia is also a master of melodramatic flair. Scalia’s warning that “words no longer have meaning” in this year’s health care decision is not the first time he has sounded an alarm on the doom that awaits our country. But he made largely the same gesture in 1988, when, already mourning the supreme law of the land, Scalia said “one must grieve for the Constitution” in Morrison v. Olson.
Supreme Court justices have also enjoyed weaving imagery into their opinions and dissents.
When Justice Ruth Bader Ginsburg dissented in Board of Education v. Earls in 2002, she conjured a picture of “nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh.”
In 2000, Justice Scalia took issue with his fellow justices’ use of the phrase “narrowly tailored,” writing in his Hill v. Colorado dissent, “narrow tailoring must refer not to the standards of Versace, but to those of Omar the tentmaker.” And in 2008, Scalia wrote “the city ought not to fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire.”
Not infrequently, the justices get downright sarcastic.
Justice Kagan sardonically quipped, “what a neat trick – but really, what a way to run a criminal justice system. No wonder five Justices reject it,” in 2012’s Williams v. Illinois.
In his dissent in the 2003 Grutter v. Bollinger case, Justice Clarence Thomas referred to a law school when he wrote, “the sky has not fallen at Boalt Hall at the University of California Berkeley, for example.”
Scalia, obviously disgruntled about needing to weigh in on a 2000 case about golf (PGA Tour Inc. vs. Martin), famously wrote: “We Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure the Framers of the Constitution… fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question,”
Though nearly every judge on today’s bench has taken included cheeky or biting language in their opinions at some point, Richard L. Hasen, a law professor at the University of California, Irvine School of Law, set out to prove that Justice Scalia takes the cake.
Earlier this year, Hasen published a paper using empirical evidence to show the magnitude of Justice Scalia’s sarcasm. With a research assistant, Hasen tallied mentions of each justice’s sarcasm or caustic language in law reviews and divided that by the number of years each had been on the Supreme Court. Scalia, he found, beat second-place Justice Samuel Alito by a magnitude of more than six.
Justice Scalia’s sharp-tongued zingers and the clever stylings of the other Justices make for a — dare I say it — even enjoyable read of the legalese of the Supreme Court, even if our nation’s highest court now bears similarities with a dessert in your Chinese takeout, according to Scalia.
“The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” Justice Scalia wrote in his dissent in Friday’s same-sex marriage case.