The ornamental citation.

• Jurisdiction: United States

Section 70. The ornamental citation.—The temptation to toss in a bit of tangential learning or to button up a train of thought with a pat quotation is frequently a very strong one. I know it is that way in my own case, and I note below some instances of that tendency—simply by way of illustration, and not at all, I should hasten to add, to show what a very learned fellow I can be at times.

To the extent that the inclusion of an ornamental citation (or even a few of them) does not interfere with or detract from the main stream of the argument, indulgence in this particular form of vanity can do no harm; it may even give one's brief an appealing overtone of erudition that a court will respect. The first two examples noted below may qualify as illustrations. Then again, the subject may be such that what might ordinarily be considered merely ornamental citations turn out to be strictly utilitarian; example (c), below, is an instance of such a situation.

On occasion, too, the quest for the ornamental citation may turn up either the winning case in point or at least one that will really harry the opposition; see the two examples noted in (d), below. And finally there is the ornamental citation or ornamental discussion that leads nowhere and adds nothing, and is therefore bad. A few Federal judges, living and dead, were given to this practice; examples appear at large in the reports; further identification would be both invidious and unnecessary.

(a) In the Girouard case,³⁰ already discussed in Sections 50 and 57 above, the Government brief stressed that, in view of the legislative history, adoption of petitioner's view would involve the rewriting of an Act of Congress. By way of sharpening the issue, the brief went on:

In view of this compelling legislative history, of Congressional action and of highly significant Congressional inaction, the rule of the Schwimmer, Macintosh, and Bland cases has become a statutory rule, having an independent legislative basis, which, we submit, can be reconsidered only by Congress, and which is not open for reconsideration or reexamination here.

We need not stop now to inquire when and to what extent adherence to the precept of stare decisis is either necessary or desirable. There is here no question of common law, requiring resolution of the paradox that "law must be stable and yet it cannot stand still," Pound, Interpretations of Legal History, 1; cf. Cardozo, The Growth of the Law, passim. There is before this Court no problem of reconciling situations which involve similar factual patterns embroidered with varying niceties of legal expression, such as this Court considered against an equivocal background of legislative history in Helvering v. Hallock, 309 U. S. 106. The present case does not require a reexamination of constitutional doctrine in the light of legislative reenactments which necessarily question earlier judgments or decisions on constitutional issues. See Helvering v. Griffiths, 318 U. S. 371, 400-401, discussed in Petitioner's Brief, pp. 33-34. Nor is there here any question of either the power or the propriety of this Court's reexamination and reconsideration of its prior constitutional determinations; we have ourselves, supra, pp. 39-42, invited a reexamination of the constitutional aspects of the Macintosh decision.

The proposition here is broader and bolder: It is that this Court rewrite an Act of Congress. It is that this Court, by reconsidering the steps which led to a result which Congress has since independently adopted, arrive at a new result which Congress advisedly refused to adopt.

In the context, Pound and Cardozo were unquestionably ornamental citations, but their inclusion did serve to add support to one of the steps in the argument.

(b) Some dozen or so years ago, a soldier who had been badly wounded in World War II sued the United States to recover just compensation for the use of his body.³¹ The case is set out in the following excerpt from the Government's brief in opposition to the petition for certiorari.

STATEMENT

Petitioner, Edward C. Commers, was inducted into the military service on October 19, 1942, pursuant to the provisions of the Selective Training and Service Act of 1940, c. 720, 54 Stat. 885 (50 U.S.C. App. 301 et seq.) (R. 4). Prior to that time he was earning, as a manual laborer, at least $200 per month (R. 8) . After receiving his basic training he was assigned to the 6th Infantry Division of the United States Army and served with that Division in various campaigns in New Guinea and the Philippine Islands (R. 4-6). In these campaigns he received severe injuries and was afflicted with malaria and other diseases and tropical maladies (R. 5-7). During his service in the Army, from which he was discharged on August 6, 1945, he was awarded two Silver Stars,* one Bronze Star Medal,† three Purple Hearts,‡ and a Good Conduct Medal § (R. 4, 6, 16).

On March 26, 1946, petitioner filed an amended complaint in the District Court of the United States for the District of Montana alleging that because of the injuries and sicknesses which he had suffered during his Army service he is unable to follow any substantial gainful occupation as a manual laborer, and that it is reasonably certain that his disabilities will continue in a totally disabling degree throughout his life (R. 7). He is now receiving from the Veterans' Administration of the United States for his disabilities the sum of $34.50 a month when he is not hospitalized and $20 a month when he is in a hospital (R. 8).

The petitioner prayed for a declaratory judgment holding in substance, (1) that the taking of his body and earning power for use in the military forces of the United States was a taking of private property for a public use; (2) that the United States is obligated not only under the Fifth Amendment, but as a matter of natural right, to make just compensation to petitioner and all other veterans disabled in World War II; (3) that petitioner and all other disabled war veterans are constitutionally entitled to try their claims for bodily impairment in the district courts of the United States and to have the jury trial guaranteed by the Seventh Amendment; (4) that the consent of the United States to be sued upon the claims of its war disabled is implied from the Fifth Amendment (R. 15-16).

The United States filed a motion to dismiss the complaint on the grounds that it did not state a claim upon which relief could be granted and that the court was without jurisdiction as the United States had not consented to be sued in this manner (R. 17). The judgment of the...