It’s time to talk about what really matters: the underrated use of exclamation marks in Supreme Court opinions. Let’s call them “Supreme exclamations.”
The propriety of exclamatory opinions recently came up in the blogosphere when Judge Leon (of the DC district court) dared to exclaim in Klayman v. Obama, which involves an important constitutional challenge to an NSA surveillance program. In fact, Leon exclaimed more than once. Consider: “Candor of this type defies common sense and does not exactly inspire confidence!” And: “[T]here is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!” Over at the Volokh Conspiracy, Stewart Baker suggested that Leon’s exclamations undermined the persuasiveness of his opinion. That criticism struck me as plausible. Legal writing shouldn’t be boring, but it also shouldn’t be overwrought.
But then I found myself reading Marbury v. Madison and, lo and behold, Chief Justice Marshall wasn’t above dropping a few exclamation marks in his day. As Marshall put it in Marbury: “How immoral to impose [the constitutional oath] on [judges], if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”
Clearly, originalists should be using lots of exclamation marks.
This got me thinking: when have members of the current Court seen fit to exclaim? Here are a few examples:
- Justice Scalia in his Brown v. Entertainment Merchants majority: “And Hansel and Gretel (children!) kill their captor by baking her in an oven.”
- Justice Alito in his recent Town of Greece v. Galloway concurrence: “At Greece Town Board meetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often present.”
- Justice Kagan in her Arizona Christian School Tuition Organization v. Winn dissent: “We have faced the identical situation five times—including in a prior incarnation of this very case!—and we have five times resolved the suit without questioning the plaintiffs’ standing.”
What’s your favorite/least favorite Supreme exclamation?
Re’s Judicata 
It seems potentially significant (or not!) that all of the recent uses of exclamation marks in Supreme Court opinions listed here occur in parenthetical phrases. Perhaps burying an exclamation mark in the middle of a sentence mitigates the offense. Unfortunately for Judge Leon, he failed to follow this emerging best practice.
You’re right, Rob–there may even be a “living constitutionalism” argument to be made that sentence-ending exclamation marks are now taboo!
Note that your “in parenthetical phrases only” pattern holds true for the two examples that Will and a commentator over at Volokh identify (http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/20/originalism-judicial-opinions-and-exclamation-marks/).
“Poor Joshua!”
“How enviable a quiet death by lethal injection compared with that!”
I like how Scalia, dissenting in Hamdi, expressed his dismay and disdain here:
“It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U.S. 319 (1976), a case involving … the withdrawal of disability benefits! “
Justice Scalia in Morales v. City of Chicago: “The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally unprotected, activities as doing (ugh!) business…”