Chapter 23 A Pox On Vox Pop

• Jurisdiction: New York

Chapter 23 — A Pox on Vox Pop

Should judges veto vox populi in opinion writing?

According to one master opinion writer, “Literature, poetry, popular culture and other art forms can be worked effectively into opinion writing.”³³⁰ One example of blending literature with opinion writing comes from the New York Family Court, which relied on Invisible Man, Ralph Ellison’s novel about racism in America, to issue an order the court itself said it had no jurisdiction to issue.³³¹ Another is from the New York Supreme Court, which drew from Shakespeare’s King Lear to condemn two children who cheated their mother: “How sharper than a serpent’s tooth it is to have a thankless child.” ³³²

Many U.S. Supreme Court opinions contain art forms. Often the art overtakes the opinion, as in Flood v. Kuhn,³³³ which lists 88 baseball greats and footnotes two baseball verses in exempting baseball from antitrust laws.

This is from one judge of the law-and-economics school: “The Grateful Dead play rock music. . . . Wherever the Dead appear, there is a demand for LSD in the audience. Demand induces supply. Vendors follow the band around the country; law enforcement officials follow the vendors.”³³⁴ Another federal judge, from Brooklyn, opened with a Bible lesson:

Census-taking has never been easy, and has rarely received favorable press. King David learned this the hard way. In First Samuel, the King directed his Census Bureau, one Joab, to “go through all the tribes of Israel From Dan to Bersabee, and number ye the people that I may know the number of them.” When Joab had reluctantly counted as far as 800,000, David realized that, in some eyes, his task might be regarded as hubris on the scale of the Tower of Babel. He repented, lamenting: “I have sinned very much in what I have done; But I pray thee O Lord, to take away the iniquity of thy servant because I have done exceedingly foolishly.” The Lord turned a deaf ear for he sent David a pestilence and 70,000 died. ³³⁵

One federal judge quoted the entire theme song of the 1960s TV show Gilligan’s Island in footnote one, and began as follows: “‘Just sit right back and you’ll hear a tale’ of what happened when David Reuther, while vacationing in the Cayman Islands at the Pirates Point Resort hotel, decided to go SCUBA diving—‘a fateful trip that started from this tropic port, aboard this tiny ship.’” ³³⁶

Movies, too, attract opinion writers. One court far, far away from New York, joined the dark side by dwelling on Star Wars:

The study of prisons and the pro se litigants who inhabit them is like the study of astronomy or even science fiction. The explorer of the world of prisons and pro se plaintiffs embarks upon a fantastic voyage into another world, even another galaxy, far, far away. Prisoners protect themselves with the laser-light power of their constitutional rights. Prison officials shield themselves with administrative autonomy. Both sides have power, but both must exercise restraint, lest they give in to the dark side of the force. ³³⁷

This federal opinion opened...