John Browning 2013-11-29 23:10:03
U.S. SUPREME COURT JUSTICE ANTONIN SCALIA’S DISSENT IN UNITED STATES V. WINDSOR, the case striking down the Defense of Marriage Act and upholding same-sex marriage, probably did not come as much of a surprise to legal observers. But what did cause some head-scratching was his choice of words: As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages.1 Argle-bargle? One of the most closely watched cases in recent court history suddenly set the blogosphere abuzz, and part of the reason was Justice Scalia’s choice of words. Just what is “argle-bargle,” and why would any appellate justice—much less one of Justice Scalia’s stature—use such a phrase in a momentous judicial opinion? While scholars agree that we have the Scots to thank for “argle-bargle,” there is some disagreement on when it was first used. “Argle,” a play on the word “argue,” dates back to 16th-century Scotland, while the rhyming reduplication that gives us the phrase “argle-bargle” (think “hokeypokey,” “namby-pamby,” or “mumbo-jumbo”) came along later. One scholar points to an 1808 appearance in John Jamieson’s Etymological Dictionary of the Scottish Language, while another pinpoints a slight variation in a 1720 poem by Scottish poet Allan Ramsay, who wrote of how it would be foolish to “aurgle-bargain with our fate.” Yet another source—Merriam-Webster, no less—pinpoints the first known usage of this phrase in 1872, while an 1869 reference in Fraser’s Magazine for Town and Country predates this with a discussion of how the Scots are predisposed “to dispute every statement,” a “tendency to what in Scotland is named argle-bargling.” Its meaning, along with that of the more common British variation “argy-bargy,” is equivalent to contentiousness or bickering. But viewed in the context of Scalia’s dissent, did he really mean to use a phrase that refers to being argumentative or contentious, or was he searching for a term that is more the equivalent of legalistic nonsense? Regardless of Scalia’s intent, this use may have been a first time for “argle-bargle” in a Supreme Court opinion. But the real trailblazer in using it in judicial opinions was the late Judge Edward O. Weant Jr. of Maryland’s Court of Special Appeals. In 1979, Judge Weant began his decision in a family law case by observing that “The basis for this arglebargle was laid with the filing of a decree of divorce . . .”2 Later, in a 1985 personal injury case, Judge Weant turned to this phrase again, beginning his opinion with “this arglebargle was precipitated by these facts . . .”3 And even after Judge Weant’s retirement, the Court of Special Appeals still had a virtual monopoly on the phrase “argle-bargle,” using it in yet another case,4 this time a parking space dispute between members of a homeowners association. But while the Maryland Court of Special Appeals may have had the only appellate justices to incorporate “arglebargle” into an opinion before Scalia, they were not the only ones to use it in a legal context. The 271 Patent Blog posted an article about a piece of intellectual property legislation with the title “Patent Reform Act of 2007: Argle-Bargle or Foofaraw?” Clearly, the author is an astute fan of the beloved animated TV show The Simpsons. In its fourth season, the episode “Last Exit to Springfield” poked fun at pseudointellectual talk shows by portraying its Smartline TV discussion hosted by anchor Kent Brockman and featuring Homer Simpson, Mr. Burns, and Dr. Joyce Brothers, who debate whether the labor strike at the Springfield Nuclear Power Plant was an “argle-bargle or a foofaraw.”5 Could it be that Justice Scalia owes his witty Scottish turn of phrase to neither familiarity with old Scottish dictionaries or with Maryland appellate rulings, but to a secret obsession with The Simpsons? If the word “foofaraw” finds its way into a Scalia opinion, that may very well settle the question. And maybe Justice Scalia is making “argle-bargle” fashionable again. Not long after the court’s opinion in Windsor, the U.S. Court of International Trade borrowed the Scottish term in an opinion dealing with a Chinese exporter’s dumping of innerspring units on the U.S. market. It stated, “The first determination as to whether this argument has merit, or is merely argle-bargle, is a determination entrusted by Congress to the Department of Commerce, and the Court will refrain from considering it.”6 The “arglebargle” bandwagon has even reached Texas. A recent Court of Criminal Appeals decision held that a murder defendant suffered actual harm from the trial court’s confusingly worded jury instructions on provocation and self-defense. In Reeves v. State, Judge Cathy Cochrane took exception with most of the instructions, calling them “a six-page impenetrable forest of legal argle-bargle that attempts to instruct the jury on the law of self-defense.”7 Still, while “argle-bargle” sightings may be rare, use of rhyming reduplication terms has popped up in plenty of judicial opinions, usually in a pejorative sense as judges bemoan the legalistic nonsense flowing from one or both sides. For example, a casual perusal of the online legal research service Westlaw reveals that “mumbo jumbo” appears at least 251 times in judicial opinions.8 “Jibberjabber” shows up just seven times (although surprisingly used by parties, rather than in statements from the court), while the more prosaic “gobbledygook” has 126 hits in the legal database.9 Believed to have been coined in 1944 by U.S. Rep. Maury Maverick of Texas, “gobbledygook” has been used by everyone from political figures referring to bureaucratic doublespeak (for example, President Ronald Reagan’s stinging 1985 indictment of tax law revisions as “cluttered with gobbledygook and loopholes designed for those with the power and influence to have high-priced legal and tax advisers”) to judges decrying the indecipherable arguments and pleadings of the lawyers practicing before them. “Hodgepodge” is a particularly popular phrase, appearing no less than 670 times. It even made its way into Supreme Court history with the landmark obscenity decision in Miller v. California10 and with Justice Felix Frankfurter’s scathing dissent in a securities case that “the Holding Company Act of 1935 is a reticulated statute, not a hodge-podge.”11 “Higgledy-piggledy” is fun to say, although it appears only a scant 18 times. It has cropped up in everything from a Supreme Court of Pennsylvania dispute over the qualifications of expert witnesses—“No more flimflam, higgledypiggledy, harum-scarum expert witnesses”12—to the 8th Circuit’s affirmation of a trial court’s discretion over the order in which evidence is presented—“[t]o ensure that trial does not proceed higgledy-piggledy.”13 And before his colorful turn of phrase in Windsor, Justice Scalia created an even more vivid mental picture with his dissent in a criminal case.14 Justice Scalia deplored what he saw as the court’s ever-expanding definition of what constitutes “violent felonies” under the Armed Career Criminal Act, calling the statute vague and the majority’s expansion of it a “tutti-frutti opinion.” What’s next, “wringle wrangle,” “fiddle-faddle,” or even “fancy schmancy”? As Justice Scalia himself once noted in a speech at Princeton University in 1995, “Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.” But let’s face it: limited meaning or not, the “argle-bargles” of our lexicon do have a way of bringing judicial opinions down to earth and livening them up, don’t they? NOTES 1. United States v. Windsor, Docket No. 12-307, 570 U.S. (2013). 2. Antonelli v. Antonelli, 408 A.2d 773 (Md. App. 1979). 3. Mech v. Hearst Corp., 469 A.2d 1099 (Md. App. 1985). 4. Oakhampton Ass’n, Inc. v. Reeve, 637 A.2d 879 (Md. App. 1994) (This time, the court aided curious readers by explaining the origin of the phrase as “from the Scotch argy-bargy, to argue, wrangle, haggle.”). 5. “Foofaraw,” as defined by Wordnik, is “a fuss over a trifling matter.” 6. Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory v. United States, 2013 WL 3306410 (C.I.T.) (July 1, 2013). 7. 2013 WL 5221142 (Ct. of Crim. App., Sept. 18, 2013). 8. See, e.g., Cate v. Dover Corp., 790 S.W.2d 559 (Tex. 1990) (the Supreme Court of Texas addressing the “mumbo jumbo” of disclaimers of implied warranties); Carr v. CIGNA Sec., Inc., 95 F.3d 544 (7th Cir. 1996) (stating that where a substantial amount of money is involved, a person should “realistically be expected to take the time to read a lot of fine-print legal mumbo-jumbo”). 9. See, e.g., American Council of Education v. FCC, 451 E.3d 226 (D.C. Cir. 2006) (featuring the D.C. Circuit’s sharply-worded disagreement with the FCC over the extent of its authority in which it criticized an FCC order as “utterly gobbledygook, and it certainly cannot be what Congress intended”). 10. 413 U.S. 15, 93 S.Ct. 2607 (1972). 11. SEC v. Drexel & Co., 348 U.S. 341, 75 S.Ct. 386 (1955). 12. Gbur v. Golio, 600 Pa. 57, 963 A.2d 443 (Pa. 2008). 13. Marmo v. Tyson Fresh Meats, 457 F.3d 748 (8th Cir. 2006). 14. Sykes v. United States, 131 S.Ct. 2267 (2011). JOHN G. BROWNING is the administrative partner of Lewis Brisbois Bisgaard & Smith in Dallas, where he handles civil litigation in state and federal courts in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. He also serves as an adjunct professor at SMU Dedman School of Law, where he teaches the course “Social Media and the Law.”
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