Scalia Makes a Funny

by publius

I'm in the process of summarizing some Supreme Court opinions for an appellate journal. And I came across what is perhaps the best passage in the history of Supreme Court opinions. It's Scalia writing in Republic of Iraq v. Beaty:

But the whole value of a generally phrased residual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contemplated—known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (H.Seely comp. 2003).

That's good stuff.

Comments

[nanookinnc]

The man has his talents

[DCA]

except that Rumsfeld didn't coin it--it is an old term in the aerospace industries.

[von]

That's pretty good. (I don't know whether the general readership appreciates that, for lots of attorneys, this is pretty much as good as it gets -- fun-wise, at least.)

On a tangentially related noted, I've been reading a lot of Easterbrook opinions recently and I'm struck by how good a writer he is. Everyone talks about Posner as being the brilliant writer on that circuit (the 7th), which is fair. But Easterbrook's prose is taut; like jerky, or the world drained of all flourish. He's the Hemingway of judicial opinions when he's on his game.

Of course, I have a special place for Easterbrook in my heart, because he wrote one of the best opinions on damages in a patent infringement lawsuit: his second opinion in the Grain Processing case.

Easterbrook was sitting by designation in a triall court (in the Northern District of Indiana, IIRC): that's a process in which appellate judges sometimes handle trials (it also works in reverse -- i.e., trial judges sometimes sit on appeals panels, although not if they handled the underlying case). Easterbrook wrote an opinion on the damages that should be properly awarded to the plaintiff in the case. The plaintiff thought that the damages were too low, and an appeal was taken to the Federal Circuit. (the Federal Circuit hears appeals from most cases involving issues of patent law.)

The Federal Circuit reversed, telling Easterbrook -- at the time a well-known judge on a sister appellate court -- that he had gotten the law wrong. Embarrassing. Many District Court judges would shrug their shoulders at this point and accept the ruling -- but not Easterbrook.

In his second opinion in Grain Processing, Easterbrook laid out in detail the single best explanation of patent law damages that (IMHO) has ever been written. It explained why Easterbrook's original ruling was correct. Another appeal was taken. This time, the Federal Circuit affirmed in one of the seminal decisions governing patent law damages (and available at 185 F.3d 1241, with Easterbrook's affirmed (second)trial court opinion at 979 F. Supp. 1233.

Good stuff. Nothing quite as poetic as the Autogiro case ("Often the invention is novel and words do not exist to describe it. The dictionary does not always keep abreast of the inventor. It cannot. Things are not made for the sake of words, but words for things."). But; still.

[publius]

i like both of those guys. it's weird - I htink that the conservative Justices (not Kennedy) pretty much blow away the liberals in terms of writing.

Thomas, Scalia, and Roberts (Thomas in particular) are generally exceedingly clear and (relatively) easy to read. Scalia is of course much better at the rhetorical flourishes, and can be hilarious. It's a shame he's evil. :)

[RogueDem]

I would agree with DCA that the Rumsfeld quote is nothing new but I have to admit that the citation is pretty funny.

[urban legend]

Slow news day, apparently.

[Slartibartfast]

except that Rumsfeld didn't coin it--it is an old term in the aerospace industries

I don't know that it was invented by "the aerospace industries", but I do know that I first heard it in 1983, and not from either Donald Rumsfeld or anyone in aerospace.

[S.G.E.W.]

Scalia is of course much better at the rhetorical flourishes, and can be hilarious.

A particularly famous example, for those unfamiliar with it:

"[L]ike some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, [the Lemon test] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."

From Justice Scalia's concurrence in Lamb's Chapel v. Center Moriches Sch. Dist. (1993)

(Personally, I always thought that this description more accurately described Scalia himself, especially the "frightening the little children" bit.)

[dnfree]

Yes, it was annoying that when Rumsfeld first used the phrase he was credited with originating it, and to have Scalia corroborate his "coinage" just increases the aggravation.

I too thought it was an insightful phrase when I first heard it, and I wish I could remember when that was, but it also unrelated to aerospace. It might have come from the sciences somewhere.

[von]

i like both of those guys. it's weird - I htink that the conservative Justices (not Kennedy) pretty much blow away the liberals in terms of writing.

Diane Wood (7th Circuit). She's a liberal who can flat-out write.

[Ugh]

This dumb tax lawyer is not seeing the funny.

[chmood]

Think I'll take my sense-o-humor into the shop: if this thread is any indication, I'm a quart low, at least....

[JanieM]

Another attribution annoyance:

From Teddy Kennedy's eulogy of Bobby: "As he said many times, in many parts of this nation, to those he touched and who sought to touch him: 'Some men see things as they are and say why. I dream things that never were and say why not.'"

The quote is commonly (and pretty frequently) attributed to Bobby, but he got it from G B Shaw's play "Back to Methuselah," where the serpent says it to Eve. Wikipedia says Bobby did attribute it to Shaw when he used it, but no one apparently remembers that, or cares.

Guess we can't control quotation attributes any more than we can control how people mangle word usage. ;)

[AIMAI]

Well, its accurate enough to say what BK "said"--that's not attributing the original quote to him. If I say "my mother always said to me "even if your mother says she loves you...check it out..." I'm not obligated to say "she was actually quoting an anonymous reporter's slogan.

aimai

[JanieM]

AIMAI, sure it's "accurate" in a narrow sense to say Bobby "said" the lines, but the implication is still that he's the author, and the subtext is always "look what great lines Bobby said," and I'd bet that people who hear the quote think Bobby was the author of the lines, unless they happen to know the Shaw play, or heard Bobby himself give the attribution. (And good for him for doing it.)

You say you're not "obligated." Did I say you were? Did you see the smiley at the end of what I wrote?

Nobody is "obligated" to say anything, as I myself argued recently about word usages. In particular, nobody except an academic writing a footnote is obligated to give attributions. I was just offering another example like the "known unknown" one, where a folk attribution takes root that isn't actually accurate. Your objection applies to Scalia/Rumsfeld as much as Kennedy/Shaw.

[a-train]

i thought residual clauses were more about unknown unknowns not known unknowns?

[Joe]

"pretty much blow away"

Scalia and Roberts (don't really see Thomas) have skills, including the latter's attempt at hard boiled detective.

I respect Scalia (contra some others) for actually responding in some fashion to the other side, but writing to me blows me away when it is reasoned well too.

And, I have found Stevens repeatedly to be a great read, particularly in his separate opinions. In fact, Stevens is on record of having one of the shortest opinions of recent times.

http://supreme.justia.com/us/476/16/case.html

[von]

Joe, IMHO, Thomas is fantastic as a legal write: He clearly sets forth the issues and then resolves them in a way that other Courts can clearly apply. I can't tell you how happy I am when I see that a given opinion has been written by Thomas: I may not agree with the result, but at least I will know what the result is. That lets me give better advice to clients, and lets clients follow the law while paying less in legal fees. All good things.

BTW, Thomas' clarity in writing extends to clarity in jurisprudence: Thomas' jurisprudence is more internally consistent than Scalia's.

[Bernard Yomtov]

Think I'll take my sense-o-humor into the shop: if this thread is any indication, I'm a quart low, at least....

Let me know if they do a good job. Mine apparently needs some work also.

[JanieM]

Think I'll take my sense-o-humor into the shop: if this thread is any indication, I'm a quart low, at least.... Let me know if they do a good job. Mine apparently needs some work also.

Maybe it's a calibration problem; if you spend all your time reading the writing of lawyers, you develop a different standard for humor (among other things) than the rest of us. ;)

[Free Lunch]

I notice that three writers on the Seventh are identified as good writers (one gets the idea that 'unexpectedly' should modify any praise for an appellate judge who can write well). That must be more evidence of Chicago's greatness.

I've long enjoyed Posner's writings and enjoyed Scalia's snark at times, no matter whether I agreed with him or not. There are persuasive writers who can write very persuasive decisions. The Easterbrook example above or Judge Jones in the Kitzmiller decision both showed that the courts can manage to get the vast majority of people to understand the problem and agree with the result or, at least, accede to it.

We need that attitude in politics, too. The problem is that well-written legal decisions and well-crafted arguments are hard work, not only for the author, but also for the audience. You have to work your way through sometimes complicated problems to understand the proposed solutions and the supporting evidence for that solution. It's much easier to be lazy and use a bumper-sticker message.

[Joe]

I welcome von's perspective but don't know enough about Thomas' opinions and how they are applied to judge it. Either way, if that is the idea, that a sound perspective.

I do agree that he is more consistent than Scalia in various respects & I too welcome that. A voice like his belongs on the Court, if not necessary him personally.

The respect for judicial craft is one of those many things accounts of the SC often lacks.

[Todd]

Wikipedia credits HD Thoreau with an earlier expression of the unknown/known concept.

[Anderson]

Except that Scalia probably admires Rumsfeld.

... Re: writers on the 7th Circuit, that reminds me of their mad-dog "REQUIREMENTS AND SUGGESTIONS FOR TYPOGRAPHY IN BRIEFS AND OTHER PAPERS," which has to be seen to be believed -- I think it's generally suspected to be authored by Judge Frank "The Smart Brother" Easterbrook.

[Free Lunch]

Anderson,

The Seventh has some other sound advice for lawyers who will be cluttering up their in boxes, too. Yes, it's a Strunk and White level of how not to look like a fool, even if your arguments are hopeless, but mad-dog?

BTW, the title was tastefully done in small caps, not all caps.

[von]

I notice that three writers on the Seventh are identified as good writers (one gets the idea that 'unexpectedly' should modify any praise for an appellate judge who can write well). That must be more evidence of Chicago's greatness.

I do think that the 7th Circuit has a cadre of very good legal writers in Woods, Posner, and Easterbrook. Alex "AK-47" Kozinski, Chief Judge of the 9th, is also very good. Judge Kimberly Moore on the Federal Circuit is also good, although the types of cases that she addresses don't lend themselves to writing as colorful as Woods, Posner, Easterbrook, or Kozinski.

OTOH, this could simply be selection bias: You've selected to listen to me, and I'm a litigator practicing in the midwest who handles a lot of patent issues. Thus, I'm going to have lots of exposure to Judges on the 7th and Federal Circuits.

(Note that I'm talking writing styles, not necessarily philosophy or rulings.)

[Ugh]

Huh. In the one Thomas opinion I'm most familiar with he comes across as a buffoon who doesn't know what he's talking about while reaching the wrong result. But I guess that doesn't necessarily make him unclear.

[Adam]

The quote isn't the funny part, folks -- read the citation.

[S.G.E.W.]

Thomas' jurisprudence is more internally consistent than Scalia's.

That's because Scalia is merely a scheming liar who writes well, while Thomas is clinically insane.

[DCA]

The Wikipedia example from Thoreau is not quite the same thing--and moreover, what they quote is actually Thoreau quoting (with attrribution) Confucius. The original is in book 2 of the Analects.

[ral]

I posted this before, I think, but here again, Phil Kline discusses his Three Rumsfeld Songs (starting 3:00 in), on WNYC's New Sounds.

Ahhh, poetry and music.

[David Sucher]

Wikipedia traces "unknown unknowns" to a general and to a law professor (both in 1984) but I think it goes back quite a bit father than that.
http://en.wikipedia.org/wiki/Unknown_unknown

In any case, the joke is on people who laugh st the phrase is it is obviously a fair reflection of the maelstrom around us.