Favorite Quotations – The Judiciary

“At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”

U.S. Supreme Court Chief Justice Charles Evans Hughes as quoted in William O. Douglas. “The Court Years, 1939-1975: The Autobiography of William O. Douglas” (Random House 1980, pg. 8)

“The Chief Justice [Earl Warren] was not an intellectual heavyweight, but he had uncanny common sense and decency,” Pollak said. Warren was eager to have the court issue rulings that reflected what was best for the country, sometimes without worrying over legal technicalities or precedent. “He’d say, ‘cut through the law’.”

Stuart Pollak, former Law Clerk to Chief Justice Earl Warren, as quoted in Philip Shenon, A Cruel and Shocking Act: The Secret History of the Kennedy Assassination (Henry Holt & Co.: 2013), p. 278)

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Justice Louis Brandeis, Whitney v. California, 274 U.S. 357, 377 (1927)
(paraphrasing Thomas Jefferson’s Preamble to the Virginia Statute for Religious Freedom (1786))

“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

Dissenting Opinion of U.S Supreme Court Justice Louis Brandeis (1856-1941) in Olmstead v. United States, 277 U.S. 438, 485 (1928)

“[T]he ultimate touchstone of constitutionality is the
Constitution itself and not what we have said about it.”

Concurring Opinion of U.S. Supreme Court Justice Felix Frankfurter (1882-1965) in Graves v. New York, 306 U.S. 466, 491-92 (1939)

“[T]hat the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’.”

U.S. Supreme Court (Per Curiam ) in Cooper v. Aaron, 358 U.S. 1, 18 (1958)

“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

U.S. Supreme Court Justice Tom Clark (1899-1977) in Mapp v. Ohio, 367 U.S. 643, 659 (1961)

“Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. What we have to do in this case is to find the meaning of some not very difficult words.”

Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting)

Justice Scalia: “When did it become unconstitutional to prohibit gays from marrying?…
Was it always unconstitutional?”

Ted Olson: “It was [un]constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control…”

Justice Scalia: “I see. When did that happen?…”

Ted Olson: “There’s no specific date in time. This is an evolutionary cycle.”

Justice Antonin Scalia questions and former Solicitor General Ted Olson responses during U.S. Supreme Court Oral Argument in Hollingsworth v. Perry (March 26, 2013) pp. 39-40.

“But the worse [sic] part of today’s opinion is where the majority subverts all known principles of stare decisis. The majority makes plain, in the first 33 pages of its decision, that it believes Abood was wrong. 4 But even if that were true (which it is not), it is not enough. ‘Respecting stare decisis means sticking to some wrong decisions.’ Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___, 135 S. Ct. 2401, 192 L. Ed. 2d 463, 471 (2015). Any departure from settled precedent (so the Court has often stated) demands a ‘special justification—over and above the belief that the precedent was wrongly decided.’

Dissenting Opinion of U.S. Supreme Court Justice Elena Kagan in Janus v. AFSCME, 585 U.S. ___, 138 S.Ct. 2448 (2018).

“[I]t will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are: and are not themselves laws. They are often reexamined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill founded, or otherwise incorrect.”

Swift v. Tyson, 41 U.S. (16. Pet.) 1, 18 (1842)

“Nor can any regulations be enforced against the transportation of printed matter in the mail which is open to examination so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress.”

Justice Stephen Johnson Field (1816-1899)
Ex Parte Jackson, 96 U.S. 727 (1878)

“It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation, as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters, an epitome of which is found in the margin….

“Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.”

Mueller v. Oregon, 208 U.S. 412 (1908) — The Supreme Court case originating the “Brandeis Brief”

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…. Three generations of imbeciles are enough.”

Justice Oliver Wendell Holmes, Jr., writing for the majority in Buck v. Bell, 274 U.S. 200, 207 (1927) that compulsory sterilization of intellectually disabled persons did not violate the Due Process Clause of the Fourteenth Amendment. Note that he equated the government’s justification of compulsory vaccination with compulsory sterilization. Such laws were based on the “science” of eugenics that swept the country’s elites in the early part of the last century. Only Justice Pierce Butler dissented from the Court’s decision, and he did not bother to write a dissenting opinion. This case has never been overruled by the U.S. Supreme Court.

“Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged….  As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be…  Ultimate futility … is the lesson of every such effort….”

Justice Robert H. Jackson (1892-1954), West Virginia State Board of Education v. Barnette, 319 U.S. 624, 640-41 (1943).

“Evidently it also needs to be repeated that the overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist.”

Justice John Marshall Harlan II in Chessman v. Teets, 354 U.S. 156, 165

“Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”

Justice Hugo Lafayette Black in Torcaso v. Watkins, 367 U.S. 488, 495 n.11. (1961)

“[C]lassifications based on race are potentially so harmful to the entire body politic [footnote 5]….”

[Footnote 5] “Indeed, the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals…. If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935, translated in 4 Nazi Conspiracy and Aggression, Document No. 1417-PS, pp. 8-9 (1946):

“On the basis of Article 3, Reichs Citizenship Law, of 15 Sept. 1935 (RGB1. I, page 146) the following is ordered:”

“* * * *”

“Article 5”

“1. A Jew is anyone who descended from at least three grandparents who were racially full Jews. Article 2, par. 2, second sentence will apply.”

“2. A Jew is also one who descended from two full Jewish parents, if: (a) he belonged to the Jewish religious community at the time this law was issued, or who joined the community later; (b) he was married to a Jewish person, at the time the law was issued, or married one subsequently; (c) he is the offspring from a marriage with a Jew, in the sense of Section 1, which was contracted after the Law for the protection of German blood and German honor became effective (RGB1. I, page 1146 of 15 Sept. 1935); (d) he is the offspring of an extramarital relationship, with a Jew, according to Section 1, and will be born out of wedlock after July 31, 1936.”

Dissenting Opinion of Justice John Paul Stevens in Fullilove v. Klutznick, 448 U.S. 448, 534 n.5 (1980), when he originally opposed the constitutionality of racial quotas — under the non-existent, mythical “equal protection component of the Fifth Amendment” — before he succumbed to the temptation of judicial supremacy, enticing him to believe that the U.S. Constitution had no fixed meaning, but was an evolving document which needed to be interpreted afresh by each generation by a bare majority of the nine unelected lawyers who happened to be then serving on the U.S. Supreme Court.

“[Justice John Paul] Stevens had considered Reagan’s comments at Kennedy’s 1988 White House ceremony — about the new justice being someone who would follow the law rather than make it — to be ‘both offensive and inappropriate,’ he wrote in his 2011 book, ‘Five Chiefs.’ Stevens decided he would not attend White House swearing-in ceremonies in the future.”

Mark Walsh, With confirmation, oaths and ceremonies to come (April 7, 2017) ” Washington Post, April 7, 2017

“I’ll be very candid. When I first learned about the [Foreign Intelligence Surveillance Act] Court, I was surprised. It’s not what we usually think of when we think of a court. We think of a place where we can go, we can watch the lawyers argue and it’s subject to the glare of publicity and the judges explain their decision to the public and they can examine them. That’s what we think of as a court.”

U.S. Supreme Court Chief Justice John Roberts at his 2005 confirmation hearing, as quoted by Peter Wallsten, Carol D. Leonnig, and Alice Crites, “For secretive surveillance court, rare scrutiny in wake of NSA leaks,” Washington Post, June 22, 2013

“There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.”

Arizona v. United States, 132 S. Ct. 2492 (2012)

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.”

Obergefell v. Hodges, 192 L. Ed. 2d 609, 634 (2015)

“The Ninth Circuit has a knack for disregarding the Supreme Court. Sometimes it simply ignores the Supreme Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011) (“[J]udicial disregard [for the Supreme Court’s habeas jurisprudence] is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.”). Other times it reads the decisions of the Supreme Court in such a peculiar manner that no “fair-minded jurist” could agree. See Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fairminded jurist could think that [the Supreme Court case at issue] clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution.”). Occasionally it even thinks it is the Supreme Court. See Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth Circuit for granting habeas relief based on its own precedent, where AEDPA requires that a state court decision violate clearly established federal law as established by the Supreme Court, “not by the courts of appeals”). But this is the first time I’ve seen the Ninth Circuit decide a criminal defendant’s direct appeal based on law that the Supreme Court has just overruled without even considering whether the new rule applies.”

Ninth Circuit Court Judge Sandra Segal Ikuta, dissenting United States v. Lee, No. 13-10517

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit (sworn in December 1, 1981; retired September 2, 2017)
Adam Liptak, “An Exit Interview with Richard Posner, Judicial Provocateur,” New York Times (Sept. 11, 2017)