From time to time you find a judge who is dandy in reason, faithful in the love of justice and dismal in that particular form of chatter that is traditional with us, called obiter dicta or general philosophizing.
Thus (to give an example) a judge will render an eminently sound decision based on some provision of the Constitution or some statute, and will begin his opinion thus:
We find for the plaintiff, albeit the plaintiff is a disgrace to civilized manners. Indeed, it is not too much to say that rarely if ever has such a disgusting pig appeared before this court. No consideration of filial piety has ever bound him, and no consideration of normal human civility has ever served to ameliorate his barbaric enterprise. We are constrained, however, to abide by the law even if he arouses a proper contempt in all decent persons. Etc., etc.
Then the judge gets to the point, that the plaintiff has the right of the matter and is supported by the court.
You may wonder why judges feel obliged to pillory the fellow who (they eventually get round to saying) has the weight of law on his side.
I finally figured it out. The average judge originally wanted to be a clergyman but got to thinking that might interfere with his personal habits or, even if he didn't drink, smoke, chase women or cuss, might interfere with his evenings. A clergyman is often disturbed at night by people who choose 3 a.m. to die or who at 11:45 decide to have a suicide crisis.
So the average future judge wisely concludes the clergyman's life is not for him, yet he never quite gives up his inborn vice of preaching to sinners.
Judges probably would gladly have settled for being newspaper columnists, preferably in Washington, but correctly concluded a columnist's job is sheer luck and therefore too chancy to plan a career on.
Besides, I am not sure judges in general have that niceness of balance that is so striking in your average columnist. To be brief about it, a columnist might be a bounder (as a judge might be) and might say outrageous things about a president, but could not be forced to say harsh things about somebody who is down and out.
Judges, on the other hand, are extremely unlikely to be abrupt with the powerful, but very likely to dwell at length on the shortcomings of the helpless blokes brought before them.
In the case of Falwell vs. Hustler (an erotic and scatological journal) the Supreme Court will probably decide in February whether the magazine should pay Falwell for the mental suffering occasioned by a Hustler parody (a mock advertisement that suggested Falwell had sexual relations with his mother in an outhouse).
And I will bet you a buck that when the great court renders its decision you will find in the various opinions (I expect one majority opinion and at least two separate dissents) at least a dozen unflattering references to Larry Flynt, the publisher.
Few judges can refrain from giving their views on Heaven, Hell and Mohawk haircuts from time to time, however irrelevant those views may be to the judge's function of asserting the law.
Already the case has trundled through some lower courts, including the awesome tribunal of the Circuit Court of Appeals, which for almost all cases is the ultimate arbiter. That court found for Falwell, but just barely, and some of the dissents insisted the law was on the side of Hustler. All the same (it was sometimes thought necessary to point out, while defending the rights of Hustler) the parody was atrocious, outrageous, zub, zub, zub.
You might think that a justice who believes Hustler did nothing illegal or defamatory or justifying the collection of damages would simply say so. In fact, however, the very justices who find Hustler blameless in law are almost certain to observe that the parody was nasty beyond belief. Since "nasty" is not necessarily against the law of the United States, however, why is it thought necessary to imply or say that Hustler is the stuff of pig-wallows?
Judges are not called on to lecture us on taste, literary merit, motherhood or the Fourth of July, but there is something about sitting up in a high chair that makes judges itch to throw their oatmeal.
As a merciful man, who has always opposed jobs on assembly lines and other inhuman modes of life, I feel sympathy for judges. They look at others in their graduating class who make $400,000 a year and who never get discussed in newspapers, and even the best judge is bound to feel a bit sorry for himself occasionally. So you could say that sounding off on irrelevant matters is little enough compensation for a life of intellectual rigor, more or less, and the discipline of the law.
The trouble is not that a judge may reasonably be allowed to play columnist from time to time but that the verbal pillorying may negate the force and sense of the opinion itself.
It is hard to forget Lord Jeffreys, a sometime lord chief justice of England, who liked to preface his remarks with the reminder he could smell a damned stinking Presbyterian two miles off. He did have, I admit, an admirable consistency, and not only could he smell Presbyterians but hanged all of them he could get his hands on. Thus he avoided the criticism I offer today, that gratuitous insults may weaken the force of a judicial judgment.
If Hustler wins against Falwell will Hustler be damaged, even in victory, by snide remarks from the courts? If the point of a judgment is that Hustler is protected by the Constitution, then judges should do nothing to dull public awareness of that protection.