Elsewhere in this issue I discuss how the outcome of the presidential election might affect the Supreme Court’s future. Below is a midsummer trivia quiz on the Court’s richly quotable past.
Some quotes are by justices, others are about them or the Constitution. Award yourself 1 point for identifying the author of a quote; 2 more for naming the case or the author’s written work (where applicable); and, for Nos. 20-25, add 3 degree-of-difficulty bonus points for naming the author. A perfect score is 81. A score of 42 qualifies you as a Supreme Court expert. Answers are at the end.
1. "I know it when I see it."
2. "If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
3. "A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens."
4. "John, who the hell is … the guy dressed like a clown?"
5. "Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, ‘uncontradicted’ legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."
6. "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."
7. "Yes, two, and they are both sitting on the Supreme Court."
8. "The life of the law has not been logic; it has been experience."
9. "If the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers."
10. "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
11. "Three generations of imbeciles are enough."
"Packing the Supreme Court simply can’t be done."
—President Truman
12. "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."
13. "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."
14. "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
15. "The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges–leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’–with the somewhat more modest role envisioned for these lawyers by the Founders."
16. "The Constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure."
17. "We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
18. "The judiciary … has … no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment."
19. "One man’s vulgarity is another’s lyric."
20. "Avant-garde artistes such as respondents remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it."
21. "Although I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon, I never understood the Constitution to require a State to give such preference. (My dissenting Brother asks me to say that this statement does not necessarily represent his views on the respective merits of Scotch and bourbon.)"
22. "They put you in this big room. They slam this mahogany door shut. You’re entombed. When the World Trade Center collapses, you can’t go on television and tell people not to worry."
23. "I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power."
24. "Packing the Supreme Court simply can’t be done…. I’ve tried it, and it won’t work…. Whenever you put a man on the Supreme Court, he ceases to be your friend."
25. "I would rather talk to the damned fools than listen to them."
ANSWERS
1. Justice Potter Stewart, concurring that the French film Les Amants was not obscene, Jacobellis v. Ohio, 1964.
2. Justice Robert Jackson, dissenting, Terminiello v. Chicago, 1949.
3. Justice Sandra Day O’Connor, Hamdi v. Rumsfeld, 2004.
4. President Nixon, in July 1971, after first seeing William Rehnquist, whom Nixon later appointed to the Court, quoted by John Dean.
5. Justice Rehnquist, dissenting, United Steelworkers v. Weber, 1979.
6. Justice William O. Douglas, recognizing "right to privacy," Griswold v. Connecticut, 1965.
7. Former President Eisenhower, listing the appointments of Chief Justice Earl Warren and Justice William Brennan as his two big mistakes, as quoted in Henry J. Abraham’s Justices and Presidents; perhaps apocryphal.
8. Oliver Wendell Holmes Jr., The Common Law, 1881.
9. President Lincoln, first Inaugural Address, March 4, 1861.
10. Justice Louis Brandeis, dissenting, Olmstead v. United States, 1928.
11. Justice Holmes, Buck v. Bell, 1927.
12. Sen. Roman Hruska, supporting Nixon nominee G. Harrold Carswell, 1970.
13. Chief Justice Warren, Miranda v. Arizona, 1966.
14. Joint opinion of Justices O’Connor, Anthony Kennedy, and David Souter, Planned Parenthood v. Casey, 1992.
15. Justice Antonin Scalia, dissenting in Casey.
16. President Washington, 1793, from The Writings of George Washington.
17. Justice Brennan, New York Times v. Sullivan, 1964.
18. Alexander Hamilton, Federalist 78, 1788.
19. Justice John Marshall Harlan, upholding the right to wear a jacket emblazoned "F– the Draft" in a county courthouse, Cohen v. California, 1971.
20. Justice Scalia, concurring in judgment, NEA v. Finley, 1998.
21. Justice Hugo Black, dissenting, Department of Revenue v. James B. Beam Distilling Co., 1964.
22. Then-New York Gov. Mario Cuomo, on why he would not want to be a justice, 1993 interview with the Albany Times Union.
23. Chief Justice Roger Taney, ruling as a circuit justice against President Lincoln, Ex parte Merryman, 1861.
24. President Truman, lecture at Columbia University, April 28, 1959, quoted in the New York Herald Tribune, April 29, 1959.
25. John Johnson, Supreme Court litigator, explaining his rejection of President Cleveland’s offer of a nomination, as quoted in Dean Acheson’s letter to Harry S. Truman, October 8, 1957.
This article appeared in the Saturday, July 26, 2008 edition of National Journal.