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Literary Style of the Opening Paragraph in Pennsylvania v. Dunlap:

This dissent from denial of certiorari that Orin noted is obviously noteworthy less for its legal analysis and more for the opening paragraph's amusing departure from normal Supreme Court style. This was implicit, I'm pretty sure, in Orin's posts, but I thought I'd make it explicit, and explicitly solicit comments about it.

In particular, are there other examples of such self-conscious stylistic departures in Supreme Court opinions? I can't think of any off the top of my head, though of course there are a few instances (including whole opinions in rhyme, invariably very bad rhyme) in lower courts.

Related Posts (on one page):

  1. Literary Style of the Opening Paragraph in Pennsylvania v. Dunlap:
  2. Interesting Dissent from Denial of Certiorari,
csm:
Opinion Noir?

I like it.
10.14.2008 4:16pm
csm:
Dissent Noir is better.
10.14.2008 4:17pm
Paul Gowder (whose name is attached to a forgotten account) (mail) (www):
Some of Scalia's stuff almost counts. Like the mad zombie passage in Lamb's Chapel.
10.14.2008 4:21pm
Duffy Pratt (mail):
James Ellroy it's not.
10.14.2008 4:31pm
arthur:
Flood v Kuhn has a stylistically bizarre opening.
10.14.2008 4:35pm
Sasha Volokh (mail) (www):
Also note the citation of the Judge Friendly opinion from two or three years before the Chief's own clerkship with him.
10.14.2008 4:44pm
Sasha Volokh (mail) (www):
The dame came in as suddenly as an interlocutory appeal from a denial of qualified immunity under section 1983. Her legs were as long as Roe v. Wade and McConnell v. FEC -- combined.
10.14.2008 4:46pm
Sasha Volokh (mail) (www):
Her arrival was as unexplained as a denial of certiorari -- at least, in a case unlike Pennsylvania v. Dunlap, where no dissent is filed.
10.14.2008 4:48pm
catullus:
After the Penn Supremes had slapped him around,and the Big Dudes had shrugged it off, Devlin took a swig out of the bottle in his bottom drawer, put on his hat, checked the rounds in his pistol, and headed to Casablanca, where the waters were supposed to be attractive.
10.14.2008 4:52pm
steve lubet (mail):
The writing is engaging but not very persuasive. Detective Devlin was in a "tough" neighborhood in which he'd apparently made twenty drug busts over the previous five years. That would be one bust every twelve weeks, which does not exactly establish the neighborhood as a narcotics supermarket. Then he saw something change hands in exchange for cash. "Devlin knew the guy wasn't buying bus tokens." Oh really? How did he know. Don't people use bus tokens in tough neighborhoods? Or cigarettes?

Well, says the chief: "Devlin knew." May I suggest that is not a very reliable standard to use for determining probably cause.
10.14.2008 4:55pm
Dilan Esper (mail) (www):
"What's that?", the clerk asked.

The judge took one last look at the petition, and picked it up, to hold it in his hands one last time.

"It's the stuff that cert grants are made of."
10.14.2008 5:07pm
runape (mail):
The DeShaney dissent? Or Blackmun's opinion in Casey (although he was right).
10.14.2008 5:07pm
Al Maviva:
It's nice, but I prefer legal opinions that give us just the facts, ma'am.
10.14.2008 5:10pm
krs:
Judge Friendly's the man. He gets cited all of the time. Just last week the majority and the dissent in a CA5 en banc case cited Judge Friendly's work.

It was probably significant when CJ Roberts's very first opinion cited a Rehnquist and a Friendly opinion, both by name IIRC but I don't think it's a big deal every time CJ Roberts cites Friendly.
10.14.2008 5:15pm
Brett Gardner (mail):
Dilan wins.
10.14.2008 5:15pm
Soronel Haetir (mail):
So am I the only one disturbed by the fact that this denial of cert states that both justices would reverse without even receiving merits briefs?
10.14.2008 5:23pm
Sasha Volokh (mail) (www):
Soronel: Every Term, there are a few "summary reverses," that is, where the mistake is considered so obvious that the Court is willing to reverse unanimously just on the basis of the cert petition and the brief in opposition to cert. Of course, both the cert petition and the brief in opposition usually talk at length about the merits.
10.14.2008 5:48pm
Rich B. (mail):
The problem, of course, is that third-person omniscient narrator is that a Court is left to rely upon the "narrator's" account without any hard evidence. It was a bad neighborhood. The cop had a feeling. There was a transaction.

You can make it sound like an obviously-criminal event any time two or more people assemble in a high-crime area if you write it like Raymond Chandler. If that's all it takes, then the constitutional standard is worthless.
10.14.2008 5:52pm
David Warner:
Brevity is the soul of wit. Perhaps he just wanted to show Obama that not only will diverse voices be heard in his court, but diverse styles employed in its statements.
10.14.2008 6:02pm
Roy Englert:
It's not exactly the same, but Rehnquist often waxed literary in his opinions, especially dissents. For one particularly good example, see Texas v. Johnson, 491 U.S. 397, 424-425 (1989) (quoting John Greenleaf Whittier, "Barbara Frietchie"). He also quoted Gilbert and Sullivan, and Arthur Conan Doyle, though not at the same length. Also, as some will recall, Roberts quoted Bob Dylan just last Term. Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531, 2550 (2008) (Roberts, C.J., dissenting).
10.14.2008 6:20pm
Roy Englert:
Ginsburg, in dissent, also copied the following from Jones Day's brief in the case: "[I]n the television series 'M*A*S*H,' Hawkeye Pierce (played by Alan Alda) presciently proclaims: 'I will not carry a gun. . . . I'll carry your books, I'll carry a torch, I'll carry a tune,
I'll carry on, carry over, carry forward, Cary Grant, cash and carry, carry me back to Old Virginia, I'll even "hari-kari" if you show me how, but I will not carry a gun!' See http://www.geocities.com/Hollywood/8915/
mashquotes.html." Muscarello v. United States, 524 U.S. 125, 144 n.6 (1998) (Ginsburg, J., dissenting).
10.14.2008 6:27pm
BABH:
I rather enjoyed the cryptogram in the recent Da Vinci Code case in Britain.

Surely there have at least been acrostics in Supreme Court cases? Clerks spelling out their names, perhaps?
10.14.2008 6:35pm
SSFC (www):
Through these new petitions a pool clerk must go who is not herself new, who is neither tarnished nor a Yale grad. The clerk must be a complete lawyer and a wide reader and yet an unusual clerk. She must be, to coin a rather unweathered phrase, a clerk of guts. She persuades as a clerk of her chamber persuades, that is, with lawyer's wit, a lively sense of her Justice, a disgust for tradition, and a knowledge that she can write her own ticket when it's known she persuaded the Chief Justice to sign this.
10.14.2008 6:36pm
Alex Blackwell (mail):
Two news reports, courtesy of How Appealing.
10.14.2008 6:46pm
A.S.:
Since it is so rare that one has the attention of persons who actually clerked for the Supreme Court, I'll repeat my question from the other thread so that perhaps one of the Conspirators who was a Supreme Court clerk could answer - did the clerk write this, or Roberts himself? Do justices give clerks liberty to write something in a style like this?
10.14.2008 7:30pm
Kent Scheidegger (mail) (www):
Although not a Supreme Court case, Judge Kozinski's movie-title-laden opinion in United States v. Syufy, 903 F.2d 659 (CA9 1990) (a theater antitrust case) is noteworthy in this regard.
10.14.2008 7:44pm
dcuser (mail):
Justice Blackmun's ode to baseball. I forget the case name...
10.14.2008 8:18pm
Oren:


You can make it sound like an obviously-criminal event any time two or more people assemble in a high-crime area if you write it like Raymond Chandler. If that's all it takes, then the constitutional standard is worthless.

Amen to that.
10.14.2008 8:29pm
Johnny Canuck (mail):
Reminiscent of Lord Denning, Master of the Rolls.
His presentation of case facts was often very straightforward.
It is my understanding that many of his decisions were given orally from the bench, making the coherence of his prose more remarkable.
10.14.2008 8:53pm
Sasha Volokh (mail) (www):
A.S.: It may have been the clerk's idea originally to write the opinion in this style. (I'd guess that it was.) And the clerk probably had first dibs at writing the draft. But when you have a published opinion, even when it's only a dissent from denial of cert, there's no way the Justice would let it slip by. He had to have explicitly signed off on this -- perhaps it even went through several rounds of edits -- and thought the crime novel style was a good idea.
10.14.2008 9:39pm
whit:
The style actually reminds me of Joseph Wambaugh.


And he's WAY better than Ellroy! :p
10.14.2008 10:01pm
Oren:

And [Wambaugh]'s WAY better than Ellroy! :p

BLASPHEMY!
10.14.2008 10:28pm
Duffy Pratt (mail):
whit:

I can understand why a cop might like Wambaugh better. But here the question is one of pure style, and on that score I prefer Ellroy.
10.14.2008 10:42pm
Redlands (mail):
At the other end of the spectrum, humor-wise, there is J. Scalia's run-up to "Apprendi-land" in his concurring opinion in Ring v. Arizona.
10.14.2008 11:21pm
NickM (mail) (www):
I've got a little list
Of judges who'd not be missed.

Justice Roberts isn't on it.

Nick
10.14.2008 11:38pm
Arkady:
Hammett, Chandler, and Elroy -- I think you guys may have gotten the provenance wrong:




ANNOUNCER:

Dragnet -- the documented drama of an actual crime. For the next thirty minutes, in cooperation with the Los Angeles Police Department, you will travel step by step on the side of the law through an actual case transcribe from official police files. From beginning to end. From crime to punishment. Dragnet is the story of your police force in action.

(MUSIC FADE)



FRIDAY: It was Sunday October 9. It was cool in Los Angeles. We were working the night watch out of Robbery Detail. My partner's Frank Smith. The boss is Chief of Detectives, Thad Brown. My name's Friday. We were on our way out from the office and it was 2: 06am when we got to the corner of Cinnabar Street and Grand Avenue. The Brinton Hotel.

BOXER: Well I just done what he told me. I figured there was no point in getting myself all roiled up. Didn't see where that would be helping matters.

SMITH: Yes, sir.

BOXER: Whatever he said, I done it. Hey, you fellas looking for a room?

FRIDAY: Police officers. This is Frank Smith, my name's Friday.

ROBERTS: Are you from Robbery?

SMITH: That's right.

ROBERTS: Roberts. 1 - 0 - 16

FRIDAY: Uh - huh.

SMITH: You answer the call?

ROBERTS: Yeah. The description's out. Metro's sending a couple of cars to help us look for the suspect.

FRIDAY: All right, good.

ROBERTS: Anything else I can do for you?

FRIDAY: No not right now.

ROBERTS: Okay. I'll take care of the report.

FRIDAY: Thank you. We'll check with you
10.15.2008 8:41am
A.S.:
Thanks, Sasha. I didn't mean to imply that the clerk "slipped one by" Roberts. Just that, if it were Roberts idea, I would think it would be a funny request to his clerk to say "write me a dissent, and make it read like Raymond Chandler". Not having clerked, though, I don't know the typical dynamics of the office.
10.15.2008 11:02am
Ventrue Capital (mail) (www):
Paul Gowder: I've searched through 508 U.S. 384 and the term "zombie" is nowhere to be found; Scalia's term was "ghoul."

Sascha Volokh: Flood v. Kuhn is also referenced in Phillip Roth's book Our Gang.

Arkady: Dragnet's style owes more to Hammett and Chandler than to other police procedurals such as Hillary Waugh.
10.15.2008 4:28pm
Arkady:

Arkady: Dragnet's style owes more to Hammett and Chandler than to other police procedurals such as Hillary Waugh.


I don't dispute the influence of the hardboiled school on Dragnet (after all, it began as a radio series in 1949). I'm not familiar with Hillary Waugh, but the rythm of the sentences in Dragnet and in the opinion is that of neither Hammett nor Chandler (see opening paragraphs, eg, of Red Harvest and The Big Sleep). Actually, the opinion reads, to me, more like Stan Freburg's parody of Dragnet, "St.George and the Dragonet":


St. George: This is the countryside. My name is St. George. I'm a knight. Saturday, July 10th. 8:05 pm. I was working out of the castle on the night watch when a call came in from the Chief. A dragon had been devouring maidens. Homicide. My job: slay him.

You call me, Chief?

Chief: Yes, the dragon again, devouring maidens. The King's daughter may be next.

St. George: Mmm-hmm. You got a lead?

Chief: Oh, nothing much to go on. Say, did you take that .45 automatic into the lab to have them check on it?

St. George: Yeah. You were right.

Chief: I was right?

St. George: Yeah. It was a gun.

8:22 pm. I talked to one of the maidens who had almost been devoured.

Could I talk to you, Ma'am?

Maiden: Who are you?

St. George: I'm St. George, Ma'am. Homicide, Ma'am. Want to ask you a few questions, Ma'am. I understand you were almost devoured by the dragon. Is that right, dragon?

Maiden: It was terrible. He breathed fire on me! He burned me already!

St. George: How can I be sure of that, Ma'am?

Maiden: Believe me, I got it straight from the dragon's mouth.

St. George: 11:45 pm. I rode over the King's Highway. I saw a man. Stopped to talk to him.

[and so on]
10.15.2008 5:49pm
Roy Englert:
No one who is not inside the Court can be sure, but I think it likely to the point of virtual certainty that John Roberts had the idea to write in that style himself, and wrote the words himself. I have been reading John Roberts's writing for a long time because I often had occasion to read his briefs when he was in the SG's Office and in private practice. The briefs were notable for the occasional departure from dry legal prose into memorable language, and there was always a reason for the use of the memorable language. Sometimes I would ask someone who worked on the brief where the language came from, and invariably the answer was it came from John Roberts himself.
10.15.2008 5:50pm
jccamp (mail):
Although I used this cite a few days ago in another thread, I'll repeat. Perhaps the dissent should be entered in the next Bulwer-Lytton competition. HERE


"You can make it sound like an obviously-criminal event any time two or more people assemble in a high-crime area if you write it like Raymond Chandler. If that's all it takes, then the constitutional standard is worthless."


Despite the first para channeling Hammett, I thought the dissent went on the discuss the issue in plain language, and I also thought it to be very convincing in its brevity.

It's just probably cause.
10.15.2008 11:19pm
Hoosier:
This of course raises my man-crush conundrum all over again.

John Roberts

OR

Kurt Cobain ?

(But I suppose all of you are in the same boat. Right?)
10.15.2008 11:43pm
jccamp (mail):
Well, it's just probable cause...probably, anyway. That's what I meant to type.

And failed.
10.16.2008 12:01am