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i n t he stacks Clever Judges In 1967, on the topic of humor, the Honorable George Rose Smith, associate justice, Supreme Court of Arkansas, admonished new judges appointed to the bench: Judicial humor is neither judicial nor humorous. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down. In the same vein, Dean Prosser concurred in his preface to the Judicial Humorist: …[t]he robed buffoon who makes merry at his [the litigants’] expense should be choked with his own wig. Twenty-three years later, Smith — perhaps with tongue in cheek — reversed his earlier unconditional prohibition of humor in opinion writing: In judicial language, that part of the Primer [quoted above] disapproving judicial humor, is hereby overruled, set aside, held for naught, and stomped on. Oh, what a few years on the bench engaged in reading the Latin-infected, verbatim et literatim language of the law does to one’s opinion writing commandments. In remembrance of those who have died of boredom from reading the dry, dull, dead language of the law, let there be levity in judicial opinions! In answer to this prayer for humorous relief we read from Justice Antonin Scalia in a concurring opinion the following passage regarding the Establishment Clause Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in his grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Mariches Union Free School District. And for good measure: Over the years … no fewer than five of the currently sitting judges have … personally driven pencils through the creature’s (Lemon) heart …. Applying Justice Scalia’s constitutional philosophy of textualism in historical context — the dead constitution school of interpretation — and finding no support in the Federalist Papers for inclusion of 44 | Willamette Lawyer such levity, we turn for guidance to the common law and Blackstone — The Comic Blackstone — where we learn: The history of our [England’s] Constitution is curious. It began with the great Charter, which the Barons wrested from John; but for the particulars of the wrestling match we refer to the Sporting Papers of the period. Thus we discover the historical source for both Justice Scalia’s use of levity and his theory of constitutional interpretation. Levity, however, knows no judicial ideology. In support of the living constitution school of interpretation, no historical sources required, we offer this tale of the wayward pig passage by Justice John Paul Stevens in a First Amendment plurality opinion: As Mr. Sutherland wrote, a ‘nuisance may be merely a right thing in the wrong place — like a pig in the parlor instead of the barnyard.’ We simply hold that when the Commission [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. In other words, just misplaced. The graveyard for clever judicial opinions is littered with the fallen headstones for allegories, doggerel, limericks, metaphors, witticisms, poems, puns and pitiful prose, of both the barnyard and parlor variety, all of which have found eternal life in the law library.

Willamette Lawyer | Fall 2011 Vol. XI, No. 2

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