Making It Sing
38
language on which this testimonial focuses is in the final paragraph of the dissent,
which begins as follows:
But when men have realized that time
has upset many fighting faiths, they
may come to believe even more than
they believe the very foundations of
their own conduct that the ultimate
good desired is better reached by free
trade in ideas—that the best test of
truth is the power of the thought to
get itself accepted in the competition
of the market, and that truth is the only
ground upon which their wishes safely
can be carried out.36
Rhythm
Holmes, like Jackson, had a remarkable
ear for the rhythm of language, which is
why the opinions of both men sang as much
as they spoke. Holmes and Jackson are famous for aphorisms: short, pithy phrases
or sentences that encapsulate the thesis of
an entire opinion. Holmes wrote that “taxes are what we pay for civilized society”37
and that “great cases like hard cases make
bad law.”38 He also wrote: “The most stringent protection of free speech would not
protect a man in falsely shouting fire in a
crowded theater and causing a panic.”39 Of
course, Holmes’s sense of rhetorical rhythm
also prompted him to defend forced ster-
ilizations of the intellectually impaired by
proclaiming that “three generations of imbeciles are enough.”40 The latter example
reminds us that rhetoric can serve both dubious and desirable public policy goals.
Jackson’s aphorisms used a rhetorical
technique known as “inversion,” which
transforms a direct statement into a complex proposition or even a paradox, which
the aphorism then solves.41 In one example, he observed, “It is not the function of
our government to keep the citizen from
falling into error; it is the function of the
citizen to keep the Government from falling into error.”42 In another, referring to the
Supreme Court as an institution, he noted,
“We are not final because we are infallible,
but we are infallible only because we are
final.”43
A fine, flowing rhythm is also evident in
the following passage from Justice William
Brennan’s majority opinion in New York
Times v. Sullivan, which broadened press
freedom by raising the bar a public figure
must clear to establish defamation. It illustrates what Judge Ruggero Aldisert has
called Brennan’s capacity for expressing
“the perfect blend of sobriety and emotiveness … ”44
Thus, we consider this case against the
background of a national commitment
to the principle that debate on public
THE VERMONT BAR JOURNAL • SUMMER 2014
issues should be uninhibited, robust,
and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials.45
The rhythm in Justice Brennan’s language
derives from its use of tricolon, the ordering of concepts in groups of three discussed earlier. Note, for example, his emphasis on the principle that public debate
should be “uninhibited, robust, and wideopen,” even though one result might be
“vehement, caustic, and sometimes unpleasantly sharp attacks” on government
and its officials. The double dose of tricolon makes this sentence roll easily off the
tongue when read aloud, reflecting its author’s careful attention to rhythm.
Literary Allusion
Space remains to discuss one last rhetorical tool evident in elegant opinions: literary allusion. References to literature in judicial opinions, like metaphors and similes,
derive their power from surprise; therefore,
if used frequently, they lose their novelty,
like the oft-repeated punch line of an outdated joke. Robert Jackson’s uncanny ear
for language helped him to use literary allusions to underscore the strength of his
substantive points. For example, in rejecting the Court majority’s explanation for up-
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