The Volokh Conspiracy
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Who Are The Three Justices To Use The Word "Bauble" In An Opinion? (Updated)
On Tuesday, Justice Jackson issued the majority opinion in MOAC Mall Holdings LLC v. Transform Holdco LLC. The case concerns a bankruptcy issue on which I have no particular expertise. But this sentence jumped out at me:
Stripped of its baubles, Transform's mootness argument is that MOAC's ultimate relief hinges on the BankruptcyCourt's ability to "reconstitut[e the leasehold] as property of the estate."
I'll admit, I had to google "baubles." I don't think I've ever seen that word. If you're curious, it refers to trinkets or decorations, like Christmas ornaments. Out of curiosity, I checked if that word has ever before been used in a Supreme Court opinion. It has. And Justice Jackson is in very good company.
Justice John Marshall Harlan I use that word in his Civil Rights Cases dissent from 1883:
But what was secured to colored citizens of the United States—as between them and their respective States—by the grant to them of State citizenship? With what rights, privileges, or immunities did this grant from the nation invest them? There is one, if there be no others—exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right, in their own State, unless the recent amendments be 'splendid baubles,' thrown out to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals, or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude.
I dug a bit further, to see if anyone has ever used the phrase "stripped of its baubles." I found one reference, in a December 2022 Boston Globe article, titled Here's your annual list of farms with goats that will eat your Christmas tree:
Children get presents. Goats get trees. It's that time of year again, when your Christmas tree is stripped of its baubles and tinsel and then tossed in the trash–unless, that is, you want to feed it to a farm animal instead.
Did Justice Jackson pick up this turn-of-phrase from the Globe? She did spend some time from Harvard, and her husband's family is from Boston. Even more pressing, do any of the Justices let goats eat their Christmas trees. I had no idea this was a thing!
Update: A longtime reader wrote in to inform me that Justice Harlan did not make up the phrase "splendid baubles." Rather, Harlan was referencing back to an even more prominent jurist. Chief Justice Marshall use the phrase "splendid bauble" in McCulloch v. Maryland.
The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the rights of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble
I checked and that passage from McCulloch appears in my casebook. I must have read that passage a dozen times. Mea culpa.
Justice Jackson is in even better company than I had initially realized