The Volokh Conspiracy
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Homer Nodded in the U.S. Reports
How the phrase ended up in an opinion after it had been omitted.
The phrase "Homer nodded" appears four times in the U.S. Reports. The first time was in Justice Douglas' concurrence in Brandenburg v. Ohio (1969) (quoting Judge Learned Hand as it happens).
The phrase would not appear in another Supreme Court decision until 1992's Lee v. Weisman, when Justice Souter included it in a footnote. Yet as Mark Tushnet recounts on Balkinization, while the phrase had been included in the original slip opinion, it was omitted by the Reporter's office--apparently because no one there recognized the phrase and they thought it was an error. As a consequence, it did not appear in the official bound volume for several years. Indeed, it was only after Tushnet contacted Souter about the omission that Souter realized what had occurred, and the language was restored by a subsequent erratum.
Tushnet writes:
"Homer nodded" comes to us from the Roman poet Horace via two English poets from the turn of the seventeenth and eighteenth centuries, John Dryden and Alexander Pope. It's been widely observed that Justice Souter seems to have been more comfortable in some earlier century, though the seventeenth seems to me a bit too far back. Justice Souter's writing style was more ornate, more nineteenth century, than the pared down (Hemingway-influenced?) contemporary opinion style.
"Homer nodded" was part of Justice Souter's store of cultural knowledge—but not, apparently, part of the store of such knowledge in the Reporter's office. Justice Souter could write "Homer nodded" as easily as Justice Scalia could refer without citation to Broadway lyrics or Justice Kagan (with citation!) to Dr. Seuss. When I retired from classroom teaching I had just about played out my string on cultural allusions that my students could understand ("The Princess Bride" was hanging in there by a thread), and my guess is that that experience is near-universal (we age, the students we deal with in the classroom remain young).
If there's a larger point here, and maybe there isn't, it is something like this: We all carry cultural knowledge with us but what that knowledge is changes—not for any individual, but for the population composing our institutions—and analysis may go at least a bit off the rails if "we" (the older among us) use our cultural knowledge as the predicate for our evaluation of the performance of today's institutions. Or, I suppose, for our evaluation of the performance of yesterday's.
For what it is worth, "Homer nodded" has appeared in two more Supreme Court opinions: McCreary County, Kentucky v. American Civil Liberties Union (2005) (citing Lee v. Wiesman) and Justice Gorsuch's concurrence in Kisor v. Wilkie (2019).
