The inexcusable silliness of Garrett Epps

In addition to teaching law students creative writing and constitutional law, Garrett Epps, a former reporter with the Washington Post, is a student of judicial body language.  Please take a look at his piece that ran yesterday in the Atlantic.  It is entitled, “Justice Alito’s Inexcusable Rudeness; A justice of the Supreme Court should not act like a high schooler on the bench; when the target is a fellow justice, the offense is even greater.

Assume Justice Alito did exactly what Epp alleges.  That is, while Justice Ginsburg was summarizing her dissent on Monday addressing his majority opinion, “Alito pursed his lips, rolled his eyes to the ceiling, and shook his head ‘no.'” Why should anyone care?

The Justices are human beings and very weary ones right about now.  A grimace, grin, nose wrinkle, ear tug, eye roll, a silent “no” and the like in response to your colleague’s dissent from an opinion you worked your butt off to craft is hardly worth writing about in the Atlantic–unless, of course, you teach creative writing and you really don’t like someone.  God, how I hate Washington.


PS  Several times, I have had occasion to spend a little time with Justice Alito. He strikes me as a serious but painfully shy man.  Several times, I have had occasion to spend a little time with Justice Ginsburg.  Reserved but gracious, she strikes me as someone who needs no defenders.

12 responses

  1. Wow–somebody put a star on his calendar; this redneck conservative agrees with the liberal judge.

    If this is what we have teaching constitutional law, it’s no wonder our lawyers–especially those who grow up to be politicians–are so deficient in the supreme Law of the Land.

    I found it as jarring as seeing a Justice blow bubblegum during oral argument.

    Not nearly as jarring as I found his arrogance, both here and throughout his piece. The only reason I don’t blow bubbles with my bubblegum is because the bubblegum loses its flavor too quickly, and I grow bored with it. I’ll not get into his nonsense of special consideration having been earned solely on the basis of the number of years survived, or the gender of the survivor.

    BWDIK; I haven’t grown up, yet.

    Eric Hines

  2. I think it is most certainly noteworthy, so I’d have to disagree. We are talking about one of the 9 most powerful jurists in the country, and it is an individual with so little respect for his colleagues and a clear lack of professionalism. Maybe my military background is why I feel so strongly about this, but this sort of behavior would not be accepted anywhere else.

    There are certainly more important things to report on, but to pretend that one of the most powerful men in the world’s juvenile antics aren’t newsworthy is error. This action also demonstrates, as if SCOTUS does not already do so regularly, the privilege and entitlement amongst the most powerful people in society.

    It is strange because I rarely disagree with the things you write here, which I why I regularly read but do not comment.

  3. My military background is why I disagree with Epps’ out of proportion diatribe. Performance counts for far more than station in life. The military’s demand for respect, moreover, is a whole different kettle of fish: lives depend on the integrity of the officers (and NCOs), and on the respect held by those in subordinate positions for those in superior positions. But that integrity is earned and the respect demonstrated by concrete actions not minor–trivial–displays.

    …the privilege and entitlement amongst the most powerful people in society.

    And yet this is exactly what you seem to be according Justice Ginsburg, solely on the basis of her age and gender–or her status as a Supreme Court Justice–and not at all based on her accomplishments–or Justice Alito’s. The rank question doesn’t even apply here; she’s just another Justice, no different from Alito.

    Eric Hines

  4. Mathew,

    I get your point of view particularly with your important reference to military service. Your view is certainly a reasonable one. Civility and professionalism is important–but, what do we really mean by that.

    What I am trying to say, and not very well apparently, is that we judges express human emotions just like everyone else. Goodness, I can’t count the number of times I honestly could not keep a straight face while hearing an argument or listening to a witness testify. I try my best, but sometimes I fail. My guess is that is what happened with Justice Alito. He wasn’t intending to be disrespectful, he thought Justice Ginsburg was just dead wrong and the strength of that disagreement caused the eye roll, etc.

    To my way of thinking, if we want to honestly evaluate the Justices (or any other judge), we have to stop putting them under the microscope for insignificant reasons. Quirky little stuff like this simply doesn’t matter. If there were a real problem, I have every confidence that the Chief would take care of it.

    Truly, I appreciate your taking the time to write. All the best.


  5. I would submit that what I said it a lot more complex than you make it out to be, but I understand where you’re coming from. It just always jars me when people refuse to ‘lead by example.’ I consider myself an ambassador for the legal profession, and I act accordingly. It is a shame that one of the 9 most powerful lawyers in the country does not feel the same. Cheers

  6. I have studied under Prof. Epps for two classes and despite our sundry philosophic and political differences, I valued the experience. I can easily vouch that he is not a silly man, but is in fact a gentleman.

    After all, in victory: magnanimity. Anything less seems so, how shall I say, unbecoming.

  7. Nicholas,

    Thanks for taking the time to write. I appreciate your comments about Professor Epps and take your comments to be true. That is, Professor Epps is not silly, and he is a gentleman.

    I continue to believe, however, that the good professor vastly overreacted with a vitriol that was not called for by Justice Alito’s behavior. Most fundamentally, the pundit class (which now includes me, I suppose) should learn to cut people some slack (and, if you are a realist as I am am, that means judges too). I am certainly willing to do so for your highly regarded professor.

    Again, thanks for your insights. I value them, particularly since I am not acquainted with Professor Epps. All the best.


  8. Matthew,

    My son, who is now an Australian citizen, always ends his e-mails to me with “cheers” when he thinks I am wrong, but doesn’t feel the need to poke the old dork in the eye. You brought a broad smile to my face with your kind and gentle use of the term.

    All the best.


  9. For me, the concern is not the possible offense to the other Justices, but to the parties. The parties are actual individuals (and entities) with a personal stake in the outcome of the case. Whether in the opinions themselves or when announcing the opinions, care should be taken to avoid language and conduct that appears to disrespect or trivialize the parties or the matters at stake. The federal courts serve the public and, in turn, the specific parties, and the public service component, along with many other reasons, is why decorum and manners are important. With that said, mistakes happen and should not be overblown. It is far too common for the punditry to cover the SCOTUS like a high stakes sporting event or with the superficiality of a celebrity gossip story. P.S. I really enjoy your blog.

  10. Dear Perfection is unrealistic,

    I agree with you. It is always better to be perfectly proper and decorous particularly if you are a guy wearing a black dress,but as you know perfection is unrealistic.

    I am glad you like the blog. I truly appreciate your taking the time to write.

    All the best.


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