"No matter whether th’ Constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns." So said Mr. Dooley at the turn of the 19th century. Or to be more exact, so said columnist Finley Peter Dunne, who voiced this unflattering assessment through his fictional character Mr. Dooley, an unschooled, but astute, Irish immigrant.
Mr. Dooley’s comment implies that the Supreme Court’s opinions are influenced by public opinion instead of the Constitution. Mr. Dooley may have it wrong. Take, for example, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Citizens United holds that restrictions on a corporation’s independent political expenditures are unconstitutional as a violation of their First Amendment right of speech. And McCutcheon v. Federal Election Commission [2014 U.S. Lexis 2391], decided five days ago, strikes down provisions of the Federal Election Campaign Act that limit the total amount of contributions individuals may contribute to candidates and political parties. This ruling also is based on the First Amendment right, according to the Chief Justice, "to participate in electing our political leaders."
Cynics might argue these cases prove Mr. Dooley’s point. Citizens United and McCutcheon are certainly about election returns. But rather than reflecting on a judge’s reading of past election returns, these astonishing cases help ensure the outcome of future election returns. If he were around today, I wonder whether Mr. Dooley would argue that this proves his point. I do not speculate about the justices' subconscious psychological motivation, nor do I question their integrity. I question their reasoning.
We can argue about the rationale that underlies these decisions, but we have a good idea of what they permit or disallow. Nevertheless future cases decide the scope of most judicial decisions. And this proves that language is elusive. We can hook onto a holding or a promising phrase, but it struggles to be free and slithers and slides from our grasp. Lawyers and professors analyze and conjecture how holdings will affect future conduct. Perhaps that is why so many judicial opinions are lengthy. They often contain language that qualifies, illustrates, or compares. This is symptomatic of our relentless search for the ever unreachable goal of certainty.
A good friend of my wife and me, Rona Goldfarb, helped me shake off the unsettling effect Citizens United and McCutcheon had on me. It happened as I was reading the newspaper the other day. Some people still do that. There were no election returns this time of the year to influence me, but I wondered aloud in rhyme, "How do we frame what happened in Ukraine?"
Rona who has an extraordinary talent to capture issues in hilarious, pithy phrases replied, "Crimea a river." I think the great lyricist and songwriter Arthur Hamilton, who wrote the hit tune "Cry Me a River," would approve. He has a subtle and ironic sense of humor. Who else could have written, "You told me love was too plebian, Told me you were through with me and .…"? Please do not confuse this song with the one also titled "Cry Me a River" by Justin Timberlake. His pedestrian lyrics were written purportedly over his breakup with Britney Spears. No wonder.
"In the beginning was the Word.…" St. John, 1:1. Whether one takes what is written in the Bible literally, or as metaphor, words, whether of a supreme being or a flawed mortal, are of supreme importance. They reflect our humor, intellect, and integrity. They should be used with care however trivial or crucial the context.
I was interviewed on a radio show and the interviewer thanked me for speaking with him. I caught myself as I was about to say what I heard other interviewees say countless times, "Thanks for having me." Yes, I know that phrase means something like "thanks for inviting me to be on the show." It doesn’t mean you have been had and are happy about it. Instead, at the last moment, I came up with a novel response, "You’re welcome."
Someone was speaking at a memorial about a close friend who had passed away. In the middle of his remarks, he choked up and wept. He collected himself and said, "Sorry, I lost it." No one minded, but I thought to myself, "What did he lose?" ‑‑perhaps his composure, but he gained or at least displayed his humanity and sensitivity.
What about the expression "if and when"? "If" means I may do it, I may not do it. But "when" tantalizes by creating an expectation that you will do it.
Of course a crystal clear clarity, however elusive, is not always called for. My brilliant research attorney Lauren Nelson showed me some writing examples provided by the editors of The American Scholar, the magazine of the Phi Beta Kappa Society. By the way, I was not asked to join the society. It had something to do with grades. The editors recently published what they considered the ten best sentences. Here are a few.
James Joyce, A Portrait of the Artist as a Young Man. "I go to encounter for the millionth time the reality of experience and to forge in the smithy of my soul the uncreated conscience of my race."
Toni Morrison, Sula, "It was a fine cry - loud and long - but it had no bottom and it had no top, just circles and circles of sorrow."
Ernest Hemingway, A Farewell to Arms, "Anger was washed away in the river along with any obligation."
I grant you the type of creative writing one finds in fiction or poetry rarely belongs in a judicial opinion. These sentences are no less masterful because they are subject to interpretation and of course must be read in context.
But even in judicial opinions, it is hard to nail down a clear meaning even when it seems clear. Justice Felix Frankfurter remarked in United States v. Witkovich, 353 U.S. 194, 199 (1957), "[O]nce the tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative."
Yet, despite the problematic and indeterminate nature of words, as I remarked earlier, we can discern with a high degree of certainty the meaning of Citizens United and McCutcheon. And I want to cry me a river.