Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Court Rulings for the Rest of Us

Emily Belz


June 24, 2011
by Emily Belz

If the Supreme Court were to hold a Scrabble tournament with the executive and legislative branches, the Supreme Court would win.

In May alone, according to the Marquette Law Review, the justices cited the dictionary in eight decisions. The court cares more about words than almost any other body in the land. The justices debate words like "now." They take up cases based on written merit briefs, written amicus briefs; written opinions become law, written dissents are scrutinized for generations. And the court, to one degree or another, bases all of its decisions on a written Constitution.

There’s nothing visual about the Supreme Court. The justices aren’t in front of any cameras because each year they resist media pleas to allow cameras in the courtroom. Most reporters sit along the north wall of the courtroom with the justices off to the left, behind pillars and heavy curtains, so they can’t be seen in the flesh. Reporters whisper the names of who is speaking for anyone who can't see. Once you’ve covered a couple arguments, you begin to learn the justices’ voices.

Justice Antonin Scalia is known as the most accessible, entertaining writer on the court—he is among the most read, the conversation starter. Consider this passage from Scalia’s blistering dissent in the May decision that ordered California prisons to reduce their populations due to overcrowding:

Most of [those released] will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

These words are more vivid than his legal point that most prisoners are “not part of any aggrieved class.” Justice Anthony Kennedy, in the majority opinion, shot back with some vivid images, describing a mentally ill prisoner who was locked in a “telephone-booth sized” cage for 24 hours, “standing in a pool of his own urine, unresponsive and nearly catatonic.”

Such descriptive opinions seem to line up with what Justice Oliver Wendell Holmes wrote back in 1899: “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” Things, not words. Translate.

Chief Justice John Roberts once opened a 2008 dissent on a drug arrest case like a dark crime novel:

Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three­ dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens.

The Pennsylvania Supreme Court said the police didn’t have probable cause to arrest the man who turned out to have crack in his pocket, and the Supreme Court declined to take up the case, but Roberts made his case to the public.

"My guess is that the Chief lost a bet with Scalia on the baseball playoffs,” Paul Levine, a crime thriller author and a former attorney, told the Blog of LegalTimes after the opinion was published. “If Roberts wins the next wager, Scalia will have to write an opinion in iambic pentameter.” The lawyer for the alleged drug dealer thought Roberts was a bit flippant towards his client, but he guessed Roberts was trying “to appeal to a broader audience.”

Law schools exist for a reason but accessible, interesting opinions help the rest of us join the conversation. The Constitution offers us a common language, and the justices would be kind to talk about the Constitution not just among themselves.

“American constitutional law provides no haven from controversy,” writes H. Jefferson Powell in A Community Built on Words. “All it offers is the means by which people of fundamentally different views, beliefs, origins, and visions can become and remain a political community.”

—Emily Belz is a reporter in Washington, D.C., covering politics for WORLD magazine.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”