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Muddy, Foggy Papers: SCOTUS and/as Chancery?

2011 June 24

Ryan D. Fong
University of California, Davis

Despite her untimely passing in 2007, Anna Nicole Smith is still making headlines. But then again, so is Charles Dickens.

In a decision against her estate’s case against the family of her late husband, the Supreme Court ruled against her claim and announced its decision yesterday. When Chief Justice John Roberts read his majority decision aloud, he alluded to the past, but reached back much further than four years. In fact, it was closer to one hundred and sixty.

“This ‘suit has, in course of time, become so complicated, that … no two … lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;’ and, sadly, the original parties ‘have died out of it.’ A ‘long procession of [judges] has come in and gone out’ during that time, and still the suit ‘drags its weary length before the Court.'”

Of course, for any Victorianist, those words are strikingly familiar, and Roberts’ explanation of the allusion–that “those words were not written about this case, see C. Dickens, Bleak House, … but they could have been”–was an unnecessary one. Certainly, many might see the linking of Anna Nicole Smith and Dickens as marking an all-time low for the Great Inimitable, but the reference does provide some contemporary resonance for the absurdly byzantine character of Bleak House‘s famous case.

Many critics have pointed to the various cases that inspired Dickens’ creation of Jarndyce v. Jarndyce, and Roberts is not the first American judge to draw on the author’s condensation of legal history. Indeed, a cursory search revealed that Bleak House has been referenced no fewer than 155 times in federal court. In Supreme Court opinions alone, the novel appears nine times, dating back to 1959–and not always as an act of mere rhetorical flourish. In a footnote to the 1994 case Hess v. Port Authority Trans-Hudson Corp., Jarndyce v. Jarndyce is cited almost as if it were an actual, precedent-setting case:

“The dissent questions whether the driving concern of the Eleventh Amendment is the protection of state treasuries, emphasizing that the Amendment covers “any suit in law or equity.” Post, at 410. The suggestion that suits in equity do not drain money as frightfully as actions at law, however, is belied by the paradigm case. See Jarndyce and Jarndyce (Charles Dickens, Bleak House (1853)).”

What Dickens would have said about that citation–or about Roberts’ allusion to the novel in the decision about Smith’s estate–is amusing fuel for the imagination. But perhaps his response would have been more Wildean than Dickensian, in its attempt to parse the increasingly overdetermined relationship between art and life in our postmodern world and in the tragi-comical, absurd nature of legal discourse more generally.

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