The U.S. Court of Appeals for the D.C. Circuit, sitting as an en banc panel of 11 judges, sent shock waves through the world of First Amendment enthusiasts on July 29 with its opinion in American Meat Institute v. U.S. Dept. of Agriculture. We’re still digesting this compelled speech ruling, and will be producing a number commentaries over the next several weeks with our thoughts and insights from other experts.
But in the meantime, we couldn’t resist highlighting a wonderful quip in Judge Janice Rogers Brown’s dissent and how it relates to a dissent by Justice Antonin Scalia in a 2013 opinion (which borrowed a concept from 18th Century philosopher, jurist, and utilitarianism proponent Jeremy Bentham).
Upon reading American Meat Institute, an attorney who’s written publications for WLF on commercial speech called to our attention Judge Brown’s creative phrasing, which he thought rivals a quip he recalled Justice Scalia making last year in Maryland v. King.
At the outset of her American Meat Institute dissent, Judge Brown stated, “If, as Jeremy Bentham once quipped, a fanciful argument may be dismissed as ‘nonsense upon stilts,’ the court’s analysis in this case can best be described as delirium on a pogo stick.” Such an intelligently cutting statement is not at all unusual for Judge Brown, whose well-written and cogently reasoned opinions are often peppered with witty historical references. An NPR report about Judge Brown’s U.S. Senate confirmation hearings noted that her opinion writing “reminds [one] very much of Justice Scalia’s writing style.”
Justice Scalia’s Benthamite witticism came at the end of his dissent in King, a case where the Court (by a 5-4 vote) upheld a Maryland law allowing the collection of DNA from individuals arrested for “serious” offenses:
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. (our emphasis)
The “genetic panopticon” reference garnered more attention than the “strange bedfellows” makeup of the King dissent: Justice Scalia writing for Justices Ginsburg, Sotomayor, and Kagan. Commentators from such diverse outlets as SCOTUSblog, Forbes, New Republic, and Psychology Today explained that a Panopticon was Jeremy Bentham’s concept of the perfect prison, one where a single watchman could keep an eye on all inmates without the inmates knowing they were being watched.
Justice Scalia’s reference to Bethman prior to invoking “the proud men who wrote the charter of our liberties” is ironic when one considers that Bentham authored an essay in a document critically responding to the Declaration of Independence, “Short Review of the Declaration.” He also, however, had a strong libertarian streak, an ideological disposition that would certainly endear him to jurists like Justice Scalia and Judge Brown.
**Editor’s Note, August 4:
A reader was kind enough to contact the author and bring to his attention Justice Scalia’s use of the Bentham phrase “nonsense upon stilts” in his concurrence in Sosa v. Alvarez-Machain. Beyond just using the phrase, Justice Scalia invoked Bentham to make a point quite relevant to the issue in Sosa:
In Benthamite terms, creating a federal command (federal common law) out of ‘international norms,’ and then constructing a cause of action to enforce that command through the purely jurisdictional grant of the ATS, is nonsense upon stilts.
Also published at WLF’s Forbes.com contributor page