Humor, Part IV: Sarcasm

Sarcasm seems to come slightly more naturally to judges as a rhetorical tool and occasional source of humor -- perhaps because sarcasm often lends itself to touting the judge’s own intelligence at the expense of other judges, lawyers, parties, the "man on the street," the "reasonable person," or all of the above. Anyway, A-Nu had no trouble finding instances of sarcasm in judicial opinions, a few of which she presents for the enjoyment of her reader(s).

In addition to (what A-Nu views as) the paramount objective of entertaining the reader, sarcasm can also discredit the arguments of dissenters or whiny parties. Justice Souter aptly demonstrates this tactic in McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005). The case is really a battle over whether courts can examine the history of a religious display (here, a Ten Commandments in a courthouse) in determining whether said violates the Establishment Clause. Souter’s majority opinion holds that courts can and should examine such history, because the court adopts the perspective of a "reasonable objective observer" who can be presumed to know the history of the display. Noting the government's protest to such an approach, Souter acerbically responds that the government "want[s] an absent-minded objective observer." He then snidely discredits the Scalia dissent's similar objection, remarking: "Just as Holmes’s dog could tell the difference between being kicked and being stumbled over, [the history of the display] will matter to objective observers. The dissent, apparently not giving the reasonable observer as much credit as Holmes’s dog, contends that in practice it will be ‘absur[d]’ to rely upon differences in purpose in assessing government action."

A-Nu revels in the delightful subtlety of Justice Souter's nastiness; Souter, however, is playing by Marquis of Queensbury rules in comparison to the barehanded sarcasm of Judge Kent in Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668 (S.D. Tex. 2001). The opinion is sarcastic enough -- and funny enough -- that A-Nu thinks it deserves to be quoted at length. Judge Kent begins:

"Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact-complete with hats, handshakes and cryptic words-to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, a devil-may-care laugh in the face of death, [and] life on the razor's edge sense of exhilaration, the Court begins."

Judge Kent first mocks the defendant for "submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. That is all well and good-the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie."

Kent then chastises the plaintiff for citing to an irrelevant case and, moreover, mistyping the citation: "The Court cannot even begin to comprehend why [the cited] case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive."

And the opinion concludes:

"After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action . . . . . However, it is well known around these parts that [defendant's] lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action."

After reading this sublime effort and his Bolivia masterpiece, A-Nu thinks she's developing a full-on literary crush on Judge Kent. So what if he's a sex harasser and general doer of shady and possibly criminal deeds? A-Nu thinks any judge who displays such literary brilliance deserves a free pass or six -- no doubt the stress resulting from the intense pressure of crafting entertaining jurisprudence adequately explains any little indiscretions in which our lovable Judge Kent might or might not have engaged. She hopes he put his little four month disciplinary hiatus to good use by coming up with more literary witticisms to enrapture his fan base.