A Justice Souter Anecdote, or “Seeing a World in a Grain of Sand”

Mark Tushnet

Editors of constitutional law casebooks scramble at the end of each Term to edit the Court’s important opinions of the Term into a supplement available for use in the fall semester. The task is exacerbated by the Court’s tendency to clump important opinions in its last few opinion days. In the pre-electronic early 1990s the best you could do, at least if you didn’t go to the Court to pick up slip opinions, was to use the US Law Week, which typically published opinions on the day they were released and was available from the library the next day. 

The Court released its opinions in Lee v. Weisman on June 24, 1992. I edited it the next day, including substantial excerpts from Justice Souter’s concurring opinion, which offered his views on the original understanding of the First Amendment’s religion clauses. His opinion contained a footnote contrasting Thomas Jefferson’s articulated views and his practice as president. Arguing that Jefferson’s articulated views better expressed the original understanding, the footnote added after its description of Jefferson’s practice, “Homer nodded.”

So I went to the source, writing Justice Souter about the issue. After a while he replied. The substance of his letter, which I don’t have at hand, was this. He had indeed included the phrase in his opinion and so in the slip opinion from which Law Week worked. But, when the Reporter’s office went to work on preparing the bound volume (505 U.S., if you care), someone concluded that the phrase was a typographical error and removed it. Justice Souter reviewed the opinion as prepared for publication in the bound volume and directed that the phrase be restored. For some reason, though, the Reporter’s office ignored the instruction and Justice Souter never checked. 

Having received my letter, Justice Souter notified the Reporter of the error, and at 535 U.S. i appears an erratum, directing that “Homer nodded” be inserted—eight or nine years after the opinion was delivered. 

What’s the “grain of sand” point here? “Homer nodded” comes to us from the Roman poet Horace via two English poets from the turn of the seventeenth and eighteenth centuries, John Dryden and Alexander Pope. It’s been widely observed that Justice Souter seems to have been more comfortable in some earlier century, though the seventeenth seems to me a bit too far back. Justice Souter’s writing style was more ornate, more nineteenth century, than the pared down (Hemingway-influenced?) contemporary opinion style. 

“Homer nodded” was part of Justice Souter’s store of cultural knowledge—but not, apparently, part of the store of such knowledge in the Reporter’s office. Justice Souter could write “Homer nodded” as easily as Justice Scalia could refer without citation to Broadway lyrics or Justice Kagan (with citation!) to Dr. Seuss. When I retired from classroom teaching I had just about played out my string on cultural allusions that my students could understand (“The Princess Bride” was hanging in there by a thread), and my guess is that that experience is near-universal (we age, the students we deal with in the classroom remain young). 

If there’s a larger point here, and maybe there isn’t, it is something like this: We all carry cultural knowledge with us but what that knowledge is changes—not for any individual, but for the population composing our institutions—and analysis may go at least a bit off the rails if “we” (the older among us) use our cultural knowledge as the predicate for our evaluation of the performance of today’s institutions. Or, I suppose, for our evaluation of the performance of yesterday's.