Poetic Justice

The following is a guest post by Brandon Fitzgerald, project manager of a Law Library staffing contract, writer and student of poetry and literature.

Upon first reading the news of Justice Antonin Scalia’s recent passing, I recalled a 2015 study crowning him the most literary justice among current justices for citing notable authors 39 times in the 813 opinions he had written up to that point, more than any of his colleagues. This study is more lighthearted than scientific, but as a whole, justices throughout the history of the Supreme Court are a literary bunch.

The topic of law and literature fascinates me and is a movement that continues to gain traction in academia ever since James Boyd White penned The Legal Imagination forty years ago. For National Poetry Month, I decided to write about poetry and the Supreme Court. In researching my post last April on the relationship between law and poetry, I came across a decision in the U.S. Court of Appeals for the District of Columbia Circuit [Parhat v. Gates, 532 F.3d 834 (2008)] where the now Supreme Court nominee Judge Merrick Garland cited Lewis Carroll’s “The Hunting of the Snark.” In a striking condemnation of the government’s case against a Guantanamo Bay detainee, Garland writes:

“The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact the government has ‘said it thrice’ does not make the allegation true. In fact we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.”

In the nonsense poem, Carroll writes, “I have said it thrice: What I tell you three times is true.” Interestingly, Lewis Carroll has been cited a combined sixteen times by the current justices (including Scalia), equaling the number of references they have made to Shakespeare. What draws so many of our justices to Lewis Carroll? Perhaps it is his succinct yet clever writing style, his penchant for metaphor (which I touched on in last year’s post), or his approach to language as a permeable tool that continues to evolve. Precisely why Carroll is so celebrated by this Court remains a mystery, but if Judge Garland is ever confirmed, he will find at least some common ground among his fellow justices in their admiration for Lewis Carroll.

Former Justice John Paul Stevens, who recently turned 96, is also fond of poetry. In a 1979 address at the University of Chicago, where he once studied as an undergraduate, he declared that “the study of English literature, especially lyric poetry, is the best preparation for the law.”

Anyone who aspires to the Supreme Court would be wise to learn to recite or at least recognize some of the works by the heavy hitters in American poetry, particularly Robert Frost. When Justice David Souter stepped down in 2009, his colleagues referenced fellow New Englander Robert Frost’s most renowned “Stopping by Woods on a Snowy Evening” in a farewell letter:

“We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake’.”

In response, channeling the spirit of Frost in “Two Tramps in Mud Time,” Souter wrote, “You quoted the Poet, and I will, too, in words that set out the ideal of the life engaged, ‘…where love and need are one…’”

To acknowledge the greatest advocate and student of poetry on the bench, however, we must go all the way back to the early 19^th century. Appointed as a justice at the young age of thirty-two, Joseph Story’s first great love was not law but poetry (his most notable legacy in this field being “The Power of Solitude”). Disappointed in the lack of commercial success and critical reception his writing garnered, he turned his focus to legal matters but continued to dedicate time to writing poetry even while serving on the Supreme Court.

At the time, American lawyers longed to join the cultural elite of the expanding nation and the notion of the lawyer as something of a “renaissance man” emerged. To reach the highest ranks of the profession, one was expected to go beyond legal texts to study all matters of music, art, history and literature. In this sense, the modern-day “law and literature” movement has deep roots in the early years of the Court. The work of writing and studying poetry requires interpretation, deliberation and an acknowledgment of ambiguity. For these reasons it is no wonder so many justices appreciate verse as much as the letter of the law.