Document Type

Article

Publication Date

1979

Abstract

Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was "certain" to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took the Court's opinions "too seriously." I allowed that I had been around long enough to recognize that my notions of principled adjudication had all they could do to survive in the Supreme Court, given the force of the conflicting pressures on that body. Turning to a former student, I then engaged in what I thought to be an outstanding example of the Socratic dialogue:

Q: When you were on the law review, did you take seriously what was said in Supreme Court opinions?

A: Yes.

Q: When you spent the summer clerking for the X firm, did you take seriously what was said in Supreme Court opinions?

A: Yes.

Q: When you clerked on the Court of Appeals, did you take seriously what was said in Supreme Court opinions?

A: Yes.

Q: When you go into practice next year, will you take seriously what is said in Supreme Court opinions?

A: Yes.

Q: Do you think it is a little odd that the only institution that does not take seriously what is said in Supreme Court opinions is the Supreme Court itself?

A: (A smile).

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