WASHINGTON — Justice Antonin Scalia loved opera, but he also had a soft spot for Bob Dylan.
In a 2010 dissent, for instance, he chastised the majority for refusing to answer key questions in a case about sexually explicit text messages because technology was evolving so fast.
“The-times-they-are-a-changin’ is a feeble excuse for disregard of duty,” he wrote.
Justice Scalia was in good company. Mr. Dylan has long been the most cited songwriter in judicial opinions, said Alex B. Long, a law professor at the University of Tennessee and the author of a 2012 study, “The Freewheelin’ Judiciary: A Bob Dylan Anthology,” published in theFordham Urban Law Journal.
It was a 2008 dissent from Chief Justice John G. Roberts Jr. that really opened the floodgates, Professor Long said. “Judges’ inclination to go to Dylan has actually increased in the past few years, probably as a result of Roberts’s dissent in that case,” he said.
Dylan citations are booming in other fields as well. A study last year found 213 references to his lyrics in medical papers. (One was called “Nitric Oxide and Inflammation: The Answer Is Blowing in the Wind.”)
Bob Dylan in Judicial Opinions
Bob Dylan's lyrics have been used in judicial opinions from Superior Court to the Supreme Court, to strike a specific tone on legal issues.Here are some cases that cite the songwriter.
But a few Dylan fans frowned when they read the chief justice’s 2008 dissent. His quotation, from “Like a Rolling Stone,” was not a faithful reflection of what Mr. Dylan had sung. Though the justices occasionallycorrect their opinions long after they are first issued, the quotation has remained unchanged and incomplete.
Almost eight years later, Chief Justice Roberts this month finally broke his public silence on the matter during an interview at a law school in Boston, explaining why and how he had chosen to quote the lyric. In the process, he illuminated the special role Mr. Dylan plays in American jurisprudence.
The 2008 case concerned standing — the requirement that parties have a direct, personal stake in a litigation. The chief justice argued that the plaintiffs in the case before him, who were collection agencies for pay-phone companies, lacked standing.
His analysis was tightly reasoned and characteristically lucid. Then he put the Dylan lyric in a spot usually reserved for a citation to legal precedent: “‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”
What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.”
In the interview on Feb. 3, Dean John F. O’Brien of New England Law, Boston, probed the matter, starting with a general question. “What was your objective in quoting Bob Dylan?”
Chief Justice Roberts, a little defensively, said there was a place for a bit of levity and license in legal writing. “An intelligent layperson appreciates Bob Dylan’s poetry, if not his music,” he said. “It was, after all, in a dissent, so you have a little bit more leeway there.”
“Bob Dylan captured the whole notion behind standing,” he added. “In that case, the party didn’t have anything at stake in the case and had nothing to lose, and the case should have been thrown out on that basis.”
“I know Bob Dylan would have agreed with that,” Chief Justice Roberts said, to laughter.
Then Professor O’Brien asked about the missing word.
“That is as performed,” Chief Justice Roberts responded. “The liner notes show that it doesn’t have the ‘ain’t’ in it.”
It is true that Mr. Dylan’s own website reproduces the lyric as Chief Justice Roberts had. (The liner notes on the “Highway 61 Revisited” album sleeve, though, did not set out the lyrics. The back cover was instead devoted to an extended surrealistic poem from Mr. Dylan that seemed aimed at confounding the intelligent layperson.)
Why did Chief Justice Roberts use the published version? “I’m a bit of a textualist,” he said, to laughter.
Professor O’Brien, who seemed to think the song as sung was the superior source, had a quick retort. “If not an originalist,” he said.
There is a reason Mr. Dylan is so popular among judges, Professor Long said: His lyrics are pithy, memorable and pointed.
“They’re great lines on their own,” he said, “and they’re also really useful to convey to the legal concept they’re trying to get across.”
The most cited Dylan lyric, he said, came from “Subterranean Homesick Blues.” When judges want to reject expert testimony about an obvious point, say, they are apt to remind readers that “you don’t need a weatherman to know which way the wind blows.”
Mr. Dylan will not maintain his exalted stature forever.
“The Beatles and Springsteen are still up there,” Professor Long said. “Billy Joel is making his move. As the bench gets a little bit younger, you see guys like Billy Joel pop in there.”
The youngest member of the Supreme Court, Justice Elena Kagan, 55, has already moved on to the music of the 1980s.
In a 2013 case concerning signs on trucks, Justice Kagan gave a hypothetical example of one: “How am I driving? Call 213–867–5309.”
That was a reference to “867-5309/Jenny,” Tommy Tutone’s indelible 1981 hit, which reached No. 4 on the Billboard Hot 100 chart and will still get people of a certain age onto the dance floor at college reunions.
Still, it will be hard to displace Mr. Dylan. The day after the Supreme Court established a constitutional right to same-sex marriage last year, Justice Scalia sang a song to Justice Ruth Bader Ginsburg.
It was that same Dylan favorite: “The Times They Are a-Changin’.”
1 comment:
Interesting piece.
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