Justice Samuel Alito speaking at the Federalist Society 2016 National Lawyers Convention. Credit: Federalist Society

Justice Samuel Alito Jr. shares with Justice Neil Gorsuch more than just a firm conservative bent. They both have a fondness for a certain Dickens character to make a point about how their colleagues interpret the law.

Alito stood alone in dissent this week in a key Fourth Amendment decision. He found unreasonable the majority's disapproval of a police officer's warrantless search of a motorcycle parked in the driveway of a home.

To drive home his point, Alito turned to Mr. Bumble:

An ordinary person of common sense would react to the court's decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life,” Alito wrote. “If that is the law, he exclaimed, 'the law is a ass—a idiot.' C. Dickens, Oliver Twist 277 (1867).

Two years ago, Gorsuch, then a judge on the U.S. Court of Appeals for the Tenth Circuit, famously borrowed the same character and quote from the Charles Dickens novel, “Oliver Twist,” in his dissent in the case of the burping middle school boy. A school police officer arrested the boy who refused to stop generating fake burps. The boy was charged with disrupting the education process and suspended from school. His mother sued school officials and the police officer.

Gorsuch, dissenting from the majority's decision in favor of the school officials and police officer, wrote:

Often enough the law can be “a ass—a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838)—and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people's representatives. … It's only that, in this particular case, I don't believe the law happens to be quite as much of a ass [sic] as they do.

The legal writing guru Ross Guberman wrote of Gorsuch's literary reference: “Like Justice [Antonin] Scalia, Judge Gorsuch is nothing if not erudite. Many judges cite Charles Dickens's 'Bleak House,' so I appreciate Gorsuch's amusing reference to 'Oliver Twist.'”

A quick search of Brigham Young University's Corpus, home to about 130 million words in 32,000 Supreme Court decisions from the 1790s to the present, revealed that at least two other justices have turned to Mr. Bumble's infamous comment.

The earliest use was in the 1959 decision In re Sawyer, by Justice William Brennan. The court was reviewing a lawyer's one-year suspension from the practice of law flowing in part from interviews she conducted with one of the jurors after the trial.

Brennan wrote: “How any of this reflected on Judge Wiig, except insofar as he might be thought to lose stature because he was a judge in a legal system said to be full of imperfections, is not shown. To say that 'the law is a ass, a idiot' is not to impugn the character of those who must administer it. To say that prosecutors are corrupt is not to impugn the character of judges who might be unaware of it, or be able to find no method under the law of restraining them.”

Nearly two decades later, in a case argued and won by then-ACLU lawyer Ruth Bader Ginsburg, Mr. Bumble appeared in a concurring opinion by Justice John Paul Stevens. The case, Califano v. Goldfarb, struck down the different treatment of widows and widowers for awarding Social Security survivor benefits.

Stevens, who concurred in the judgment, addressed the 19th century presumption that females were inferior to males. He explained in a footnote:

This presumption was expressly recognized in the literature of the 19th century. It was this presumption that Mr. Bumble ridiculed when he disclaimed responsibility for his wife's misconduct. Because a part of his disclaimer is so well known, it may not be inappropriate to quote the entire passage:

“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble, first looking round to ascertain that his partner had left the room.

“That is no excuse,” replied Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two in the eye of the law, for the law supposes that your wife acts under your direction.”

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass—a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

Although Dickens can claim credit for making the phrase famous, the British website The Phrase Finder says “the law is an ass” first appeared in a play published by dramatist George Chapman in 1654—”Revenge for Honour”: “Ere he shall lose an eye for such trifle. … For doing deeds of nature! I'm ashamed. The law is such an ass.”

The Phrase Finder adds that “ass” is the English colloquial name for a donkey, “not the American 'ass,' which we will leave behind us at this point.”

 

Read more:

After the 'Epic' Ruling, Is #Gorsuchstyle a Thing of the Past?

In Quoting Profanity, Some Judges Give a F#%&. Others Don't

Take a 'Journey' Through the Justices' Bookshelves

Finding the Justice with the Most Literary Chops

Kagan: Law Schools Must Do More to Boost Student Writing Skills