The University of Texas at Austin

Law in Popular Culture collection

Oklahoma City University Law Review 
Volume 26, Number 1, 2001
Reprinted by permission of the Law Review

THE BARD AT THE BAR: SOME CITATIONS OF SHAKESPEARE BY THE UNITED STATES SUPREME COURT 

JULES GLEICHER* 

     What use has the United States Supreme Court made of Shakespeare's wit and wisdom? A series of electronic searches on the FindLaw database of the name "Shakespeare" yielded thirty-six citations, which sorted into five categories. In four cases, the name is coincidental. A few call attention to Shakespeare as an authority whose example lends respectability to an activity or way of life. Several invoke him as a renowned author and literary standard-setter, but without focusing on a particular work or quotation. Four use him as an authority to establish the meaning of legal terms. The largest category consists of opinions, on a wide variety of subjects, that refer to or quote specific works or passages in order to lend rhetorical support to a particular point. Overall, however, the Court has made surprisingly little use of this major cultural icon. Most use is recent, and much in dissenting opinions, where rhetorical flourish is especially suitable. The quotes and other references are generally apt, and where they are not, they are likely to be disputed by other members of the Court. 
     The paucity of references aroused suspicion that the Justices may sometimes have quoted from Shakespeare without attribution. But subsequent searches on a sampling of titles, characters, and key phrases yielded twenty-two additional useful citations, amid much clutter, which tended to reinforce the earlier conclusion that the Shakespearean presence in Supreme Court opinions is relatively slight, tangential, and idiosyncratic. 

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     The other contributions to this volume attest to the importance of law, lawfulness, and legality as themes within the Shakespearean corpus. The present Article examines the converse question: What use has the law, in particular the United States Supreme Court, made of Shakespeare's wit and wisdom? As a preliminary investigation of limited scope, its conclusions are merely suggestive. 

I. "SHAKESPEARE" 

     The first phase of this investigation consisted of locating and reviewing those U.S. Supreme Court cases that cite "Shakespeare" by name (as indicated by the FindLaw search engine1). The relevant electronic searches, conducted between October 17, 1999, and January 4, 2000, yielded thirty-six such cases,2 ranging in date from 1893 to 1999. They sort into five analytical categories, discussed below seriatim. 

1. Coincidence of Name 

     In four cases, the word "Shakespeare" occurs as mere coincidence. It is the name of one of the litigants in Shakespeare v. City of Pasadena3 and Shakespeare v. Zervos.4Fourco Glass Co. v. Transmirra Products Corp.5 cites Dalton v. Shakespeare Co.6Reck v. Pate,7 a civil liberties case interesting in its own right, made the list because the suspect was detained at, among other places, the Shakespeare Avenue Police Station.8 These references obviously have no meaningful connection to the poet and playwright, but their appearance on the search list highlights one of the curious wrinkles of using this research tool. It also cautions us that searches 

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using nondistinctive key words--for example, "Julius Caesar" or "Henry" or "gentlemen" or "shrew"--may pose the risk of producing more clutter than useful information.9

2. References to Shakespeare the Man

     Three of our cases refer specifically to Shakespeare but focus on aspects of his life rather than the teachings of any particular play or poem. Thus, in Boutilier v. Immigration & Naturalization Service,10 Justice Douglas' dissent disputes the Court's decision to allow the deportation of Boutilier, a homosexual, as a "psychopathic personality."11 Quoting from Judge Moore's dissent from the decision of the lower court, Justice Douglas mentions the speculation that Shakespeare may have been a homosexual.12 Again, in Central Hudson Gas & Electric Corp. v. Public Services Commission,13 a case in which the Court attempted to delineate the concept of "commercial speech," the opinion of Justice Stevens, joined by Justice Brennan, concurring in the judgment, disputes as too broad his brethren's definition of the term as "expression related solely to the economic interests of the speaker and its audience."14 Neither his own nor his audience's economic motivation, he argues, should qualify a speaker's constitutional protection under the First Amendment. "Even Shakespeare," he observed, "may have been motivated by the prospect of pecuniary reward."15 More recently, in McIntyre v. Ohio Elections Commission,16 a law that required campaign literature to contain the sponsor's name and address was struck down under the First Amendment. Alluding to the historical practice of anonymous writing and speech, the Court noted that "some believe the works of Shakespeare were actually written by the Earl of Oxford rather than by William Shakespeare of Stratford-on-Avon."17 
     Although these cases do not deal with any specific Shakespearean idea, they call attention to the poet as an authority--even an object of 

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veneration-- whose example lends respectability to the activity or way of life at issue in the case.

3. General References to Shakespeare as Playwright

     Several cases invoke Shakespeare's status as a renowned author, but again without focusing on a particular work or quotation. The earliest and least specific is Warner v. Texas & Pacific Railway Co.,18 which makes casual reference to the fact that Shakespeare's name appeared on a piece of disputed property in an earlier case cited by the Court.19 This circumstance seems distinguishable from the Shakespeare Avenue Police Station's mere coincidence of name in Reck by virtue of the likelihood that what made the property in Warner worthy of dispute was the presence on it of the famous author's name. Similarly indirect, though more deliberate, is the modern Court's citation of T. Meron's book, Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages, in Loving v. United States.20 In this case the Court upheld Congress's delegation of authority to the President to stipulate aggravating circumstances that warrant imposition of the death penalty by courts martial. The citation documents Justice Kennedy's assertion, made in the course of reviewing English precedents, that Richard II and Henry V decreed "capital offenses that not only served military discipline but also protected foreign noncombatants from the ravages of war."21 The point is specific enough, but Shakespeare's contribution to it, if any, is left unstated.22 

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     The references in the other modern cases are more direct. Three deal, in passing, with Shakespeare's occasional bawdiness. Goesaert v. Cleary,23 in which the Court upheld a law that generally banned women from the profession of bartending, opens with the observation, "We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England."24 In Ginsberg v. New York,25 the Court ruled that a state may adjust its definition of obscenity when the purpose is to protect minors. In his dissent Justice Douglas remarks that in 1818 Thomas Bowdler expurgated Shakespeare's plays in order to produce a ten-volume "Family Shakespeare."26 Similarly, the Court's sustaining, in FCC v. Pacifica Foundation,27 of the Federal Communication Commission's ban on the "dirty words" within George Carlin's famous monologue evoked this observation by Justice Brennan in his dissenting opinion: "The rationales [used by the Court] could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer."28 As with the biographical references, the emphasis here is on Shakespeare as a standard-setter, either as a describer of social phenomena or as a great author whose works, though occasionally bawdy, are entitled to be immunized from abridgement. 
     The remaining cases in this category refer more generally to the place of honor that Shakespeare occupies as a mainstay of the Western literary canon. Lemon v. Kurtzman,29 where the "threepronged test" made it 

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generally more difficult for government to assist education at religious schools,30 includes this observation in the concurring opinion written by Justice Douglas, joined by Justice Black: 
Sectarian instruction, in which, of course, a State may not indulge, can take place in a course on Shakespeare or in one on mathematics. No matter what the curriculum offers, the question is, what is taught? We deal not with evil teachers but with zealous ones who may use any opportunity to indoctrinate a class.31 
     Justice Rehnquist, dissenting in Southeastern Promotions, Ltd. v. Conrad,32 invoked Shakespeare as at least an example of highbrow theater, and perhaps as the model of theatrical refinement. The Court held that the City of Chattanooga's denial of a city auditorium and a city-leased theater for a performance of the rock musical Hair was a prior restraint of free speech, and thus impermissible under the First Amendment. This prompted Rehnquist to ask: "May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?"33
     In Caldwell v. Mississippi,34 the Court overturned the death sentence in a case where the prosecutor had urged the jury not to view itself as responsible for imposing it because the sentence would be reviewed by the Mississippi Supreme Court. Quoting from the dissenting opinion given in the case at the state supreme court level, the Court distinguished the prosecutorial remark from certain references to the Ten Commandments made by defense counsel, which were considered irrelevant to the particular legal error under review.35 This irrelevance, the dissenting state court justices had observed, "is true whether the plea for mercy discusses Christian, Judean or Buddhist philosophies, quotes Shakespeare or refers to the heartache suffered by the accused's mother."36 This somewhat casual 

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reference invokes the poet as a general source of moral guidance and charitable sentiment. 
     Perhaps the oddest such general allusion occurs in Flood v. Kuhn,37 the case that considered and preserved professional baseball's exemption from federal antitrust laws. In footnote four of his eclectic opinion, Justice Blackmun quotes some lines from He Never Heard of Casey--apparently a parody of Casey at the Bat: 
They never heard of Shakespeare, nor of Dickens, like as not, but they know the somber drama from old Mudville's haunted lot.38
4. Specific References as Sources of Evidence

     Four cases use Shakespeare as an authority to establish the meaning of legal terms. Magone v. Heller39 quotes the line, "I am sent expressly to your lordship," to illustrate the Webster's Dictionary definition of "expressly": 'In direct terms; with distinct purpose; particularly.'40 Two cases involved the meaning of "confront."41 In Coy v. Iowa,42 the Court, per Justice Scalia, cites the opening scene of Richard II to show that the term requires actually meeting one's accuser face to face.43 Interestingly, Justice Blackmun's dissenting opinion disputes the poet's authoritativeness, preferring Dean Wigmore's proposal that "confront" simply means to cross-examine.44 According to Wigmore, Shakespeare's conception of the term was superseded by the time the Bill of Rights was ratified.45 The prevailing conception, as well as Shakespeare's contribution to it, 

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reappeared in Justice Breyer's concurring opinion in Lilly v. Virginia,46 which applied the Confrontation Clause to hearsay rules. Maintaining the right to confront one's accuser face-to-face, Justice Breyer cited Richard II, Act 1, scene 1, and Henry VIII, Act 2, scene 1, among other sources, to argue that the purpose of the right was to prevent convictions based, for example, on the out-of-court confession of a co-conspirator.47
     Browning-Ferris Industries v. Kelco Disposal, Inc.48 provided another occasion for disagreement over Shakespeare's authority. The Court decided that the Eighth Amendment's prohibition of "excessive fines" did not cover punitive damages in private suits. 
     The partial dissent of Justice O'Connor, joined by Justice Stevens, cites Romeo and Juliet, Act 3, scene 1, lines 186 through 189,49 to show that "Shakespeare, an astute observer of English law and politics, did not distinguish between fines and amercements," and that the term "fine" was evolving in his time from a private bargain to a penal sanction.50 Their reliance on Shakespeare prompted Justice Blackmun to quip: 
Though Shakespeare, of course, 
Knew the law of his time, 
He was foremost a poet, 
In search of a rhyme.51 
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5. Specific References as Rhetorical Emphasis

     The largest analytical category consists of opinions that refer to specific Shakespearean works or quote specific passages in order to lend rhetorical support to a point the particular Justice is making. The cases cover a wide variety of subject matters, attesting to the poet's versatility. Several are about criminal procedure. 
     In United States v. Watson,52 the Court upheld a warrantless arrest and consequent search of the defendant's car by a postal inspector. Justices Marshall and Brennan, dissenting, commented that, in light of the more expansive modern use of the term "felony," to blindly apply the common law rule permitting a peace officer who has reasonable grounds to make warrantless felony arrests "makes as much sense as attempting to interpret Hamlet's admonition to Ophelia, "Get thee to a nunnery, go," without understanding the meaning of Hamlet's words in the context of their age."53
     Lakeside v. Oregon54 dealt with the unusual scenario of a trial where the judge instructed the jury to draw no inference of guilt from the defendant's silence, over defense counsel's objection to the instruction--a procedure which the Court allowed. Justice Stevens, dissenting, observed that depending on the actual circumstances at the trial, such a statement may have the ironic effect, perhaps even an intentional one, of inducing the jury to draw the forbidden inference. He cited as an analogy the repetition of the phrase "honorable man" in Antony's speech in Act 3, scene 2, of Julius Caesar.55
     United States v. Apfelbaum 56 held that otherwise immunized testimony to a grand jury may be introduced at a perjury trial, even if the testimony is not directly related to the charge of perjury. Observing that "in our jurisprudence there . . . is no doctrine of 'anticipatory perjury,'" the Court 

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ruled that the witness's intention to commit perjury, if granted immunity, does not itself create a substantial and real hazard of prosecution that permits invocation of the Fifth Amendment.57 In support the Court quoted some lines from Act 5, scene 1, of Measure for Measure, to the effect that what matters are acts, not bad intents.58
     Colorado v. Connelly59 held that admittance into evidence of a criminal confession made under the sway of a mental disorder (the defendant "heard voices" ordering him to confess) was not barred by the Fifth Amendment, which only prohibits the coercion of confessions by agents of the State. Justice Stevens, concurring, quoted from the "mad scene," in which Lady Macbeth's "'eyes are open,' 'but their sense is shut,'"60 and observed: "The fact that the statements were involuntary--just as the product of Lady Macbeth's nightmare was involuntary--does not mean that their use for whatever evidentiary value they may have is fundamentally unfair or a denial of due process."61
     Tison v. Arizona62 upheld the death sentences of two sons who were accomplices to murders committed by their father. Quoting from The Merchant of Venice, Act 3, scene 5, line 1--"the sins of the fathers are to be laid upon the children"63--Justice Brennan noted in his dissenting opinion that "an intuition that sons and daughters must sometimes be punished for the sins of the father may be deeply rooted in our consciousness. Yet punishment that conforms more closely to such 

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retributive instincts than to the Eighth Amendment is tragically anachronistic in a society governed by our Constitution."64
     Finally, in Spencer v. Kemna65 the Court held that a defendant who had completed his sentence failed to establish a case or controversy to challenge an earlier revocation of his parole. Justice Stevens, dissenting, disputed the notion that "an interest in vindicating one's reputation is constitutionally insufficient to qualify as a 'personal stake in the outcome.'"66 He cited in support of this contention Milkovitch v. Lorain Journal Co.,67 which had in turn quoted the lines from Act 3, scene 3, of Othello: 
He that filches from me my good name 
Robs me of that which not enriches him, 
And makes me poor indeed.68 
     The Milkovitch case which Justice Stevens cited is one of two First Amendment cases that belong to this list. It held that a newspaper does not immunize itself from a libel action simply by couching its accusations as "opinion."69 Chief Justice Rehnquist observed: 
     Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements. 
     In Shakespeare's Othello, Iago says to Othello: 
Good name in man and woman, dear my lord, 
Is the immediate jewel of their souls. 
Who steals my purse steals trash;
'Tis something, nothing; 
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'Twas mine, 'tis his, and has been slave to thousands; 
But he that filches from me my good name 
Robs me of that which not enriches him, 
And makes me poor indeed.70
     The other free speech case is Hannegan v. Esquire, Inc.,71 where the Postmaster General denied Esquire magazine second-class mail privileges, judging that, while not technically obscene, the magazine was, by its generally indecent, vulgar, and risque character, not making a real literary or artistic contribution to the public good or public welfare. Speaking through Justice Douglas, the Court disallowed this exercise of official discretion. Noting the contrariety of views concerning Shakespeare's Venus and Adonis as evidence of how elusive matters of good taste can be, Justice Douglas concluded that a requirement that literature or art conform to some norm prescribed by an official smacks of a foreign ideology.72
     Two Equal Protection cases, Levy v. Louisiana73 and Glona v. American Guarantee Co.,74 decided on the same day, provided the occasion for an exchange between two members of the Court on how to read a particular Shakespearean passage. Both cases concerned state laws that barred wrongful death lawsuits, in one case by illegitimate children for the death of a parent, in the other by a parent for the death of her illegitimate child. In both cases the Court found "invidious . . . discrimination . . . when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done" to their natural relative.75 At footnote six of Levy, Justice Douglas, speaking for the Court, added: 
We can say with Shakespeare: 
"Why bastard, wherefore base? 
When my dimensions are as well compact, 
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My mind as generous, and my shape as true, 
As honest madam's issue? 
Why brand they us 
With base? with baseness? bastardy? base, base?"76
     But in his dissenting opinion in Glona, Justice Harlan offered a different view of this text. He noted that a wrongful death litigant 
may even, like Shakespeare's Edmund, have spent his life contriving treachery against his family. Supposing that the Bard had any views on the law of legitimacy, they might more easily be discerned from Edmund's character than from the words he utters in defense of the only thing he cares for, himself.77 
     His larger point seems to be that to condition wrongful death standing on a biological relationship, as the Court does, is no less arbitrary than to condition it on the legal relationship that the state chose.78 
     A more recent Equal Protection case, Johnson v. Transportation Agency,79 upheld a public agency's Affirmative Action Plan preference for promotion of female applicants over a qualified male applicant. Justice Scalia, dissenting, observed: "Johnson was indeed entitled to have his qualifications weighed against those of other applicants--but more to the point, he was virtually assured that, after the weighing, if there was any minimally qualified applicant from one of the favored groups, he would be rejected."80 This remark is immediately prefaced with the following reminiscence: 

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     One is reminded of the exchange from Shakespeare's King Henry the Fourth, Part I: 
"GLENDOWER: I can call Spirits from the vasty Deep. 
HOTSPUR: Why, so can I, or so can any man. But will they come when you do call for them?"81 
     A couple of cases in this category come from the sphere of business. In Brown v. Felsen82 the Court ruled that a bankruptcy court may reopen, on the basis of a claim of fraud, questions that had been previously settled by judicial proceedings. Justice Blackmun observed that sometimes a simple contract suit involving a stipulation of facts benefits both creditor and debtor, because the alternative of tort litigation could be so expensive to the debtor as to leave the creditor with little to show for his victory. Justice Blackmun cited "the words of a Shakespearean creditor, fearing the worst," in support: 
When every feather sticks in his own wing, 
Lord Timon will be left a naked Gull, 
Which flashes now a Phoenix.83
     Basic Inc. v. Levinson84 asked what a company's liability was for false denials to investors that merger negotiations with another company were underway. In their concurring and dissenting opinion, Justices White and O'Connor argued that the courts should not automatically assume that the investors accepted the false representations at face value, and reflected: "It seems quite possible that, like Casca's knowing disbelief of Caesar's 'thrice refusal' of the Crown, clever investors were skeptical of petitioners' three denials that merger talks were going on."85

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     Our final subset comprises cases that are about economic regulation and claims against the government. Farmers Reservoir & Irrigation Co. v. McComb86 considered whether irrigation workers fell under the "agriculture" exception to the minimum wage law. This inquiry led the Court to formulate a definition of the term "agricultural production."87 Justice Jackson, dissenting, saw inconsistency in the way this definition was applied, and quipped at the end of his opinion that the Court creates a situation of "to be" and "not to be" at the same time--a result that would have surprised both Shakespeare and the proponents of the agricultural exemption.88 Dames & Moore v. Regan89 upheld President Carter's freezing of Iranian assets in the United States during the hostage crisis of 1979. One of the laws deemed relevant to assessing "congressional willingness that the President have broad discretion when responding to the hostile acts of foreign sovereigns" was the Hostage Act of 1868.90 Noting that U.S. District Court Judge Mikva's opinion in another case argued that this term for the law was a recent coinage, the Court replied, "We focus on the language of 22 U.S.C.  $ S 1732, not any shorthand description of it,"91 and quoted in support the familiar line from Romeo and Juliet, "What's in a name?"92 Lastly, in Walters v. National Ass'n of Radiation Survivors,93 the Court upheld the ten-dollar limit that an 1864 statute placed on lawyers' fees for pressing veterans' claims. Justice Stevens, in dissent, pointed to the important role of "the independent lawyer as a guardian of our freedom."94 Observing that the famous and often misunderstood line from Henry VI, Part II, "the first thing we do, let's kill all the lawyers," was "spoken by a rebel, not a friend of liberty," he concluded "that disposing of lawyers is a step in the direction of a totalitarian form of government."95
     The preceding survey invites a few general observations. First, one is struck by the surprisingly little use the Court and its various members have 

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apparently made of an author who is a major cultural icon.96 Moreover, most use that has occurred is of recent vintage. Of the thirty-two instances given above in which the Justices meaningfully chose to cite Shakespeare, all but one took place in the twentieth century,97 two-thirds since 1970, and over half during the 1980s and 1990s.98 Four particular Justices account for almost sixty percent of the examples: Stevens (6), Douglas (5), Rehnquist (4), and Blackmun (4). Thirteen occur in majority opinions of the Court, three in concurring opinions, and sixteen in dissenting opinions or opinions that concur in part with the judgment of the Court but dissent on the particular point for which Shakespeare is quoted. Perhaps the rhetorical quality of a good Shakespearean line is especially suitable for such separate opinions, in which idiosyncrasy has freer reign. 
     As one might expect for people who are more than commonly literate, the quotes and other references made by the Court are generally apt for the points that the Justices make. Only a few are clearly disputable, and in those instances, one or another of their brethren rises to the challenge. In the companion cases of Levy and Glona, Justices Harlan and Douglas offer alternative perspectives on the significance of Edmund's speech on 

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bastardy in Act 1 of King Lear.99 While one may concede to Justice Harlan that Edmund's villainy casts an ironic light upon his words, one can also see that Edmund's speech presents at least the beginnings of a rational skepticism that would advance a natural standard of superiority against seemingly arbitrary conventional distinctions. Edmund's words invite the reader to look beyond the character who speaks them toward a truer standard of natural excellence. The greater irony here may lie in squaring this implication with the moral relativism to which both Justices Douglas and Harlan have occasionally given voice. 100
     A more fundamental dispute is that raised by Justice Blackmun on the aptness of using Shakespeare as an authority to determine the meaning of legal terms, a position that put him explicitly at odds with Justices O'Connor and Stevens in Browning-Ferris and Justice Scalia in Coy, and implicitly with Justice Breyer in Lilly and Justice Horace Gray in Magone. It should be noted, however, that in none of these cases was Shakespeare relied upon exclusively to establish a legal definition. 

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II. TITLES, CHARACTERS, AND PHRASES

     The paucity of references, especially prior to 1950, aroused the suspicion that earlier jurists, following different principles of citation, might have seasoned their opinions with quotes from Shakespeare without bothering to mention him by name. Accordingly, subsequent searches were conducted between May 25, 2000, and June 17, 2000, on a sampling of Shakespearean titles, characters, and key phrases that seemed intuitively relevant to a juridical setting, with the following results: 
 
Name or Phrase
Number of
Citations
Useful
Citations
Duplications of
"Shakespeare"
 Henry V
100
0
 Lear
34
1
1
 Hamlet
23
16
1
 bard
19
3
3
 Richard II
15
2
2
 Henry IV
15
0
 Macbeth
12
1
1
 King John
10
0
 Falstaff
9
0
 pound of flesh
8
8
 Henry VI
6
1
1
 King Henry
5
2
2
 Two Gentlemen
5
0
 Julius Caesar
2
2
2

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Name or Phrase
Number of 
Citations
Useful 
Citations
Duplications of 
"Shakespeare"
 Merchant of Venice
2
2
1
 Shakespearean
2
2
1
 borrower nor a lender
2
1
 Richard III
2
0
 shrew
2
0
 King Lear
1
1
1
 Measure for Measure
1
1
1
 Polonius
1
1
 Shylock
1
1
 Portia
1
1
 Titus Andronicus
0
 Henry the Fifth
0
 Prince Hal
0
 Richard of Gloucester
0
 bury Caesar
0
 Ides of March
0
 serpent's tooth
0
 winter of our discontent
0

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     Most of the citations generated proved irrelevant. "Henry V" generated 100 cases in which Henry was the name of either a litigant, legal counsel, or other person named in the record, but none referred to the Shakespeare play.101 "Henry IV," "Henry VI," "Richard II," "Richard III," and "King John" almost invariably produced references to the historical figures. "Hamlet" was most often a small village, and "Falstaff" was the Falstaff Brewing Corporation. Moreover, seventeen of the useful citations merely replicated cases already found in the earlier "Shakespeare" searches, and "Polonius" led to one of the cases also found via "Hamlet." The remaining twenty-two citations are examined below.

1. "Hamlet" (and "Polonius") 

     Several of the cases that cited Hamlet did so in its capacity as the typical or best known of Shakespeare's plays, rather than with reference to any particular passage or teaching found in it. In Widmar v. Vincent,102 the Court disallowed the University of Missouri's prohibition of facilities to a student religious group as a content-based regulation of free speech. The Justices also applied Lemon's three-part test to hold that an "equal access" policy at a state university does not violate the Establishment Clause.103 Justice Stevens concurred in the judgment but conceded in passing: 
Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. . . . I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time--one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet--the First Amendment would not require that the room be reserved for the group that submitted its application first.104
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     Justice Stevens subsequently invoked his own statement in two other cases. In Bethel School District No. 403 v. Fraser, 105 the Court, speaking through Chief Justice Burger, allowed a high school to discipline one of its students for making a lewd public speech. Justice Stevens, dissenting, conceded, "A school faculty must regulate the content as well as the style of student speech in carrying out its educational mission," and quoted the above language from Widmar in support.106 He did the same in his concurring opinion in Denver Area Educational Telecommunications Consortium, Inc. v. FCC,107 in which the Court struck down certain FCC restrictions on cable television "public access" channels. Justice Stevens also cited Widmar, but without quoting himself, in his dissenting opinion in Board of Education v. Mergens.108 The Court there found it necessary to interpret the federal Equal Access Act. Acknowledging the general difficulty of ascertaining congressional intent from the speeches of particular Senators, Justice Stevens nonetheless maintained that the overall intent to extend the Widmar rule to high schools was clear. He supported the point with a literary analogy: One cannot judge "the meaning of a play by quoting one randomly chosen character"109--for example, Polonius, Claudius, or Gertrude with respect to Hamlet's "antic disposition"110--but it does not follow that Hamlet has no meaning. 
     In all of these cases, the point could have probably been as well made by invoking any Shakespeare play. But just as Shakespeare is the quintessential highbrow author, Hamlet seems to be the quintessential Shakespearean drama. Much the same could be said of Justice Scalia's remark, writing for the Court in Fex v. Michigan.111 The issue here was, from what event to begin counting the 180-day time limit for a motion of "detainer" allowing one state to hold a prisoner for trial in another state. Responding to an objection raised in dissent by Justice Blackmun, Scalia remarked that "it vastly understates the matter to say that the provision [of the relevant law] is 'written in a fashion that contemplates actual delivery 

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[of the prisoner],' as one might say Hamlet was written in a fashion that contemplates 16thcentury dress."112
     Somewhat more specific (though not unique) to Hamlet are two judicial remarks that make reference to the character Hamlet's near ubiquity in the play that bears his name. In Winters v. New York,113 the Court struck down for vagueness a New York statute against selling obscene materials, defined as accounts, pictures, or stories of deeds of bloodshed, lust, or crime. Justice Frankfurter, dissenting, objected, "Not to make the magazines with which this case is concerned part of the Court's opinion is to play 'Hamlet' without Hamlet."114 Again, Justice Scalia, writing for the Court in Capitol Square Review & Advisory Board v. Pinette,115 which upheld the right of the Ku Klux Klan to display a cross in a public square, observed that "government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince."116
     Two cases refer to a specific teaching or event in Hamlet. First, Rummel v. Estelle117 upheld as not violating the Eighth and Fourteenth Amendments a mandatory life sentence of a thirdtime offender convicted of fraud under Texas's recidivism law. Justice Rehnquist's opinion for the Court disputed dissenting Justice Powell's attempt to require a constitutional distinction between violent and nonviolent crimes, and employed the following example: 
Caesar's death at the hands of Brutus and his fellow conspirators was undoubtedly violent; the death of Hamlet's father at the hands of his brother, Claudius, by poison, was not. Yet there are few, if any, States which do not punish just as severely murder by poison (or attempted murder by poison) as they do murder or attempted murder by stabbing.118
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     Second, in Diamond v. Chakrabarty,119 the Court, speaking through Chief Justice Burger, upheld a patent on an artificially produced bacterium capable of consuming oil spills. Justice Burger acknowledged some scientists' misgivings about genetic research, which he supported with a quote from Hamlet: "These arguments . . . remind us that, at times, human ingenuity seems unable to control fully the forces it creates--that, with Hamlet, it is sometimes better 'to bear those ills we have than fly to others that we know not of.'"120

2. "Pound of Flesh" 

     All of the cases in which the phrase "pound of flesh" appears use it as a standard figure of speech to denote a meticulous but unjust application of the law, especially of a penalty or punishment. Typical is Justice Black's employment of the metaphor in his dissent in Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co.121 from the Court's decision to dismiss the case because the petitioner's lawyer had failed to file his motions with the Court on time. Or again, there is Justice Douglas' opinion for the Court in Sniadach v. Family Finance Corp.,122 which disallowed as a violation of due process garnishment of a worker's wages by the State of Wisconsin without notice and prior hearing. The Court quoted Congressman Sullivan's use of the "pound of flesh" language to describe the practice of prejudgment garnishment.123 Or yet again, Justice Marshall's dissenting opinion in Lockhart v. McCree,124 where the Court allowed the disqualification of potential jurors opposed to capital punishment from the guilt phase of a bifurcated trial. Justice Marshall approvingly quoted one critical scholar's characterization of pro-death penalty jurors as "jurors qualified on the 'pound of flesh' approach."125 

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     An ironic, almost self-mocking use of the phrase appeared in Justice Frankfurter's concurring opinion in Louisiana ex rel. Francis v. Resweber.126 This bizarre case allowed the State of Louisiana to proceed with a second attempt to execute a convict by electric chair after the first attempt went awry due to a power failure. Justice Frankfurter indicated his personal revulsion at the State's insistence on its "pound of flesh," but he could not find a violation of due process in the sense of a "principle of justice 'rooted in the traditions and conscience of our people.'"127
     Curiously, none of these cases explicitly attributes the phrase to Shakespeare or cites The Merchant of Venice.128 Thus, this may be the clearest instance discovered of a Shakespearean influence in the form of a concept or teaching that works its way into the language of the law to become commonplace. 

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3. "Merchant of Venice," "Shylock," "Portia," 
 "Borrower nor a Lender," and "Shakespearean"

     The five remaining citations present an assortment of uses. Justice O'Connor's opinion for the Court in National Endowment for the Arts v. Finley129 mentions The Merchant of Venice, either in the same general capacity as Justice Stevens's reference to Hamlet in Widmar and its progeny, or as representative of a category of literary and artistic works. The Court upheld the National Endowment for the Arts' withholding of funds from certain artistic projects under a congressionally mandated "decency" standard. The Court found that this standard was not a constitutionally impermissible "distinct viewpointbased standard for funding."130 Reviewing its legislative history, Justice O'Connor took note of Representative Williams's argument against an amendment proposed by Representative Rohrabacher, which "would prevent the funding of . . . 'The Merchant of Venice'" among other named works.131 Less ambiguous is the reference to Shylock in Justice Douglas's concurring opinion in Jones v. Alfred H. Mayer Co.132 In that case, which applied a Reconstruction Era statute to forbid racial discrimination in the sale or rental of housing, Justice Douglas quoted the former slave Frederick Douglass, who compared antiNegro attitudes to the historic prejudice against the Jews and who in turn quoted Shylock's unavailing remonstrance: 
Hath not a Jew eyes? hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same 
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means, warmed and cooled by the same summer and winter as a Christian is?133 
     The cases found for "Portia" and "borrower nor a lender" direct the reader to scholarly articles that bear these terms. The Court's opinion in United States v. Virginia134 references Justice O'Connor's article entitled Portia's Progress.135 Jefferson Parish Hospital District No. 2 v. Hyde136 cites an article entitled Fortner Enterprises v. United States Steel: "Neither a Borrower Nor a Lender Be."137 It seems likely that at least the former reference to the enterprising woman who successfully impersonates a lawyer in The Merchant of Venice was meaningful in Virginia, the case that concerned women's rights to attend the all-male Virginia Military Institute.138
     Finally, the entry "Shakespearean" led to Justice Douglas' dissenting opinion in California v. LaRue,139 a case in which the Court upheld, via the States' broad regulatory power under the Twenty-First Amendment, California's prohibition of explicit sexual entertainment at bars and other places licensed to serve liquor. Noting that the State's rule had not yet been actually applied, Justice Douglas conjectured that it might be enforced against displays of "fondling" in a Shakespearean or a more modern play performed in a beer garden, and thus the prohibition ran afoul of the protection that the First Amendment provides "artistic expression."140

[352]

     Taken as a whole, these additional cases reinforce the conclusions of the earlier searches. The number of meaningful references is strikingly low, and most of it is quite recent. All cases are from the twentieth century; only four were decided prior to 1950; over half date from the 1980s and 1990s. Four Justices--Stevens, Douglas, Frankfurter, and Scalia--account for fourteen of these twenty-two examples. Justice Stevens alone accounts for five, which, added to his earlier count, makes him the Court's arch-Shakespearean.141 Generally consistent with the earlier distribution, nine are in majority opinions of the Court, four in concurring opinions, and nine in dissenting opinions. 
     Perhaps it should not surprise anyone that the Shakespearean presence in Supreme Court opinions is so slight, tangential, and idiosyncratic. Every discipline employs its own idiom and borrows from the language of other disciplines incidentally. Still, one cannot but feel a trifle wistful that this pillar of our common cultural heritage is only so occasional a visitor in our top juristic circles. One wonders whether the situation might be different among their British counterparts. 

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ENDNOTES

* Professor of Political Science, Rockford College, Rockford, Illinois; A.B., Cornell University; M.A., Ph.D., The University of Chicago.

1. See <http://www.findlaw.com>. I wish to thank Ms. Joan Kapstein, reference librarian at the McHenry County College Library, and Mr. Philip Hjemboe, public services librarian at the Colman Rockford College Library, for acquainting me with this resource. 

2. An updated search on May 16, 2000, disclosed no additional cases. 

3. 382 U.S. 39 (1965). 

4. 394 U.S. 319 (1969). Curiously, the FindLaw link that connects to this case is Mayhue's Super Liquor Stores, Inc. v. Meiklejohn, 394 U.S. 319 (1969). The memoranda that record the Supreme Court's denial of review for both cases appear on the same page of the United States Reports. Such hyperlink detours may be one of the hazards inherent in this new research medium. 

5. 353 U.S. 222 (1957). 

6. 196 F.2d 469 (5th Cir. 1952). 

7. 367 U.S. 433 (1961). 

8. See id. at 436. 

9. See infra Part II. 

10. 387 U.S. 118 (1967). 

11. See id. at 125-36 (Douglas, J., dissenting). 

12. See id. at 130 (citing Boutilier v. Immigration & Naturalization Serv., 363 F.2d 488, 497-98 (2d Cir. 1966)). 

13. 447 U.S. 557 (1980). 

14. Id. at 579 (Stevens & Brennan, JJ., concurring). 

15. Id. at 580. 

16. 514 U.S. 334 (1995). 

17. Id. at 341 n.4. 

18. 164 U.S. 418 (1896). 

19. See id. at 423. 

20. 517 U.S. 748 (1996). 

21. Id. at 761 (citing T. MERON, HENRY'S WARS AND SHAKESPEARE'S LAWS: PERSPECTIVES ON THE LAW OF WAR IN THE LATER MIDDLE AGES 91-93 (1993)). 

22. Such a contribution is certainly available: 
KING HENRY. What men have you lost, Fluellen? 
FLUELLEN. . . . Marry, for my part, I think the duke hath lost never a man, but one that is like to be executed for robbing a church, one Bardolph, if your majesty know the man . . . . 
KING HENRY. We would have all such offenders so cut off: and we give express charge, that in our marches through the country, there be nothing compelled from the villages, nothing taken but paid for, none of the French upbraided or abused in disdainful language; for when lenity and cruelty play for a kingdom the gentler gamester is the soonest winner. 
WILLIAM SHAKESPEARE, THE LIFE OF KING HENRY THE FIFTH act 3, sc. 6, ll. 97-113 (William Aldis Wright ed., Doubleday & Co. 1936) [Editor's note: All Shakespeare works in this article are cited using the William Aldis Wright edition 1936]. On the subject of Henry V and the laws of war, see Lawrence Weschler, Take No Prisoners, NEW YORKER, June 17, 1996, at 50, 50-59; Jules Gleicher, Kenneth Branagh's Henry V, 20 PERSP. ON POL. SCI. 148, 148-50 (1991). On Shakespeare and political teaching more generally, see Jules Gleicher, Shakespeare's English History Plays as Political Science Pedagogy, 15 TEACHING POL. SCI. 98, 98103 (1998); Jules Gleicher, Deception and Ennoblement in Henry V, in 2 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY: ESSAYS IN HONOR OF GEORGE ANASTAPLO 959-80 (1992). 

23. 335 U.S. 464 (1948). 

24. Id. at 465 (citation omitted). 

25. 390 U.S. 629 (1968). 

26. See id. at 651 n.1 (Douglas, J., dissenting). 

27. 438 U.S. 726 (1978). 

28. Id. at 771 (Brennan, J., dissenting). 

29. 403 U.S. 602 (1971). 

30. See id. at 612-13. 

31. Id. at 635 (Douglas & Black, JJ., concurring). 

32. 420 U.S. 546 (1975). 

33. Id. at 573 (Rehnquist, J., dissenting). 

34. 472 U.S. 320 (1985). 

35. See id. at 337. 

36. Id. (quoting Caldwell v. State, 443 So. 2d 806, 817 (Miss. 1983) (Lee, J., dissenting as to Part II)). 

37. 407 U.S. 258 (1972). 

38. Id. at 263 n.4 (quoting Grantland Rice, He Never Heard of Casey, N.Y. HERALD TRIB., June 1, 1926, at 23). 

39. 150 U.S. 70 (1893). 

40. Id. at 74 (emphasis added). The Court gave no specific citation for the quotation, which is from WILLIAM SHAKESPEARE, THE LIFE OF TIMON OF ATHENS act 2, sc. 2, l. 32. 

41. The context is the Constitution's guarantee that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. 

42. 487 U.S. 1012 (1988). 

43. See id. at 1016; see also WILLIAM SHAKESPEARE, THE TRAGEDY OF KING RICHARD THE SECOND act 1, sc. 1, ll. 15-17. 

44. See Coy, 487 U.S. at 1028-29 (Blackmun, J., dissenting). 

45. See id. at 1029, 1029 n.3. 

46. 527 U.S. 116 (1999). 

47. See id. at 140-41 (Breyer, J., concurring); see also SHAKESPEARE, supra note 43, at act 1, sc. 1, ll. 15-17; WILLIAM SHAKESPEARE, THE FAMOUS HISTORY OF THE LIFE OF KING HENRY THE EIGHTH act 2, sc. 1, ll. 11-27. In neither Shakespeare passage does the word "confront" itself appear, but the situations depicted nonetheless seem apt to the Justice's point. 

48. 492 U.S. 257 (1989). 

49. 
I have an interest in your hate's proceeding, 
My blood for your rude brawls doth lie a-bleeding; 
But I'll amerce you with so strong a fine, 
That you shall all repent the loss of mine. 
WILLIAM SHAKESPEARE, THE TRAGEDY OF ROMEO AND JULIET act 3, sc. 1, ll. 186-189. 

50. Browning-Ferris, 492 U.S. at 290 (O'Connor & Stevens, JJ., concurring). 

51. Browning-Ferris, 492 U.S. at 265 n.7. 

52. 423 U.S. 411 (1976). 

53. Id. at 438 (Marshall & Brennan, JJ., dissenting) (quoting WILLIAM SHAKESPEARE, THE TRAGEDY OF HAMLET, THE PRINCE OF DENMARK act 3, sc. 1, l. 142). As the Court's next footnote explained, "Nunnery was Elizabethan slang for house of prostitution." Id. at 438 n.3 (citing 7 THE OXFORD ENGLISH DICTIONARY 264 (1933)). 

54. 435 U.S. 333 (1978). 

55. See id. at 345-46, 346 n.6 (Stevens, J., dissenting); see also WILLIAM SHAKESPEARE, THE TRAGEDY OF JULIUS CAESAR act 3, sc. 2, ll. 78-105, 151-153, 212, 214 (taking special notice of lines 82 through 83, 87, and 94). 

56. 445 U.S. 115 (1980). 

57. Id. at 131. 

58. See id.
His acts did not o'ertake his bad intent; 
And must be buried but as an intent 
That perish'd by the way . . . . 
Id. at 131 n.13; see also WILLIAM SHAKESPEARE, MEASURE FOR MEASURE act 5, sc. 1, ll. 451-453. 

59. 479 U.S. 157 (1986). 

60. Id. at 172 n.2 (Stevens, J., concurring); see also WILLIAM SHAKESPEARE, MACBETH act 5, sc. 1, ll. 23, 41, 47. 

61. Id. at 172 (footnote omitted). 

62. 481 U.S. 137 (1987). 

63. Id. at 184 n.20 (Brennan, J., dissenting). 

64. Id. at 184 (footnote omitted). Brennan also cites, as expressions of this deeply rooted but anachronistic retributive intuition, Exodus 20:5; Horace, Odes III 6:1; and H. Ibsen, Ghosts. He attributes the statement that the God of Israel was "a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate Him" to "the prophets." Id. at 184 n.20 (quoting Exodus 20:5). 

65. 523 U.S. 1 (1998). 

66. Id. at 24 (Stevens, J., dissenting) (footnote omitted). 

67. 497 U.S. 1 (1990). 

68. Id. at 12 (quoting WILLIAM SHAKESPEARE, THE TRAGEDY OF OTHELLO, THE MOOR OF VENICE act 3, sc. 3, ll. 155-161). 

69. See id. at 18. 

70. Id. at 11-12 (citation omitted). Neither Justice Stevens nor Chief Justice Rehnquist seems to notice, or to regard as significant, the fact that these lines are spoken by the villain Iago, who is arguably exploiting Othello's hypersensitivity to matters of appearance and reputation. 

71. 327 U.S. 146 (1946). 

72. See id. at 157-58. Justice Douglas also mentions in this regard Cervantes' Don Quixote and Zola's Nana. 

73. 391 U.S. 68 (1968). 

74. 391 U.S. 73 (1968). 

75. Levy, 391 U.S. at 72 (footnote omitted); see Glona, 391 U.S. at 74. 

76. Levy, 391 U.S. at 72 n.6 (quoting WILLIAM SHAKESPEARE, THE TRAGEDY OF KING LEAR act 1, sc. 2, ll. 6-10). 

77. Glona, 391 U.S. at 77 n.3 (Harlan, Black & Stewart, JJ., dissenting). 

78. See id. at 79-80. 

79. 480 U.S. 616 (1987). 

80. Id. at 674. 

81. Id. (Scalia, J., dissenting) (quoting WILLIAM SHAKESPEARE, THE FIRST PART OF KING HENRY THE FOURTH act 3, sc. 1, ll. 53-55). 

82. 442 U.S. 127 (1979). 

83. Id. at 137 n.8 (citing SHAKESPEARE, supra note 40, at act 2, sc. 1, ll. 30-32). 

84. 485 U.S. 224 (1988). 

85. Id. at 262 (White & O'Connor, JJ., concurring in part and dissenting in part) (citing SHAKESPEARE, supra note 55, at act 1, sc. 2, ll. 235-250). 

86. 337 U.S. 755 (1949). 

87. See id. at 759-60. 

88. See id. at 772 (Jackson, J., dissenting); see also SHAKESPEARE, supra note 53, at act 3, sc. 1, l. 55. 

89. 453 U.S. 654 (1981). 

90. Id. at 677. 

91. Id. at 675 n.7. 

92. Id. (quoting SHAKESPEARE, supra note 49, at act 2, sc. 2, l. 43). 

93. 473 U.S. 305 (1985). 

94. Id. at 371 (Stevens, J., dissenting). 

95. Id. at 371 n.24 (quoting WILLIAM SHAKESPEARE, KING HENRY VI, PART II, act 4 sc. 2, l. 72). 

96. 
The literary genius of Great Britain still darts its rays into the recesses of the forests of the New World. There is hardly a pioneer's hut that does not contain a few odd volumes of Shakespeare. I remember that I read the feudal drama of Henry V for the first time in a log cabin. 
II ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 55 (Phillips Bradley ed., 1991). 
But the American regime was not formed only by Locke. Many a frontier log cabin, which had in it no philosophical works whatever, had the King James Bible--and Shakespeare. And Shakespeare was the great vehicle within the Anglo-American world for the transmission of an essentially Socratic understanding of the civilization of the West. 
Harry V. Jaffa, The Achievement of Leo Strauss, [25 No. 49] NAT'L REV. 1355 (Dec. 7, 1973). 

97. Perhaps significant to this fact is that the FindLaw database of the texts of United States Supreme Court cases claims to be complete only as far back as 1893. 

98. This count excludes the four cases of coincidental naming in our first category, as well as Warner v. Texas & Pac. Ry. Co., 164 U.S. 418 (1896), and Loving v. United States, 517 U.S. 748 (1996). In two other cases, Coy v. Iowa, 487 U.S. 1012 (1988), and Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), Shakespeare is cited in more than one opinion. 

99. See SHAKESPEARE, supra note 76, at act 1, sc. 2, ll. 6-10. 

100. "Masochists are, to be sure, somewhat offbeat, nonconformist, and odd. But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like 'rock and roll.' Some are 'normal,' some are masochistic, some deviant in other respects, such as the homosexual." Ginzburg v. United States, 383 U.S. 463, 489 (1966) (Douglas, J., dissenting). "While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric." Cohen v. California, 403 U.S. 15, 25 (1971). 

101. Apparently the search engine ignored the "V" in the search command. "Henry the Fifth" and "King Henry" were attempts to get around this difficulty, with very limited success. Curiously, the list of 100 cases does not include Loving v. United States, which specifically mentions King Henry V. See Loving, 517 U.S. at 761. Perhaps the search engine automatically stops searching after the first 100 citations. 

102. 454 U.S. 263 (1981). 

103. See id. at 275; see also Lemon v. Kurtzman, 403 U.S. 602 (1971). 

104. Widmar, 454 U.S. at 278 (Stevens, J., concurring). 

105. 478 U.S. 675 (1986). 

106. Id. at 691 (Stevens, J., dissenting). 

107. 518 U.S. 727, 768 (1996) (Stevens, J., concurring). 

108. 496 U.S. 226 (1990). 

109. Id. at 282 n.16 (Stevens, J., dissenting). 

110. Id. 

111. 507 U.S. 43 (1993). 

112. Id. at 47 n.2. 

113. 333 U.S. 507 (1948). 

114. Id. at 527 (Frankfurter, J., dissenting). 

115. 515 U.S. 753 (1995). 

116. Id. at 760. 

117. 445 U.S. 263 (1980). 

118. Id. at 282 n.27. 

119. 447 U.S. 303 (1980). 

120. Id. at 316 (quoting SHAKESPEARE, supra note 53, at act 3, sc. 1, ll. 80-81). The quotation is approximate, and was perhaps made from memory. 

121. 385 U.S. 32, 34 (1966) (Black, J., dissenting). 

122. 395 U.S. 337 (1969). 

123. See id. at 341. This prompted Justice Black, in dissent, to take exception to such "emotional rhetoric." Id. at 344 (Black, J., dissenting). 

124. 476 U.S. 162 (1986).

125. Id. at 185 (Marshall, J., dissenting) (quoting Walter E. Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 TEX. L. REV. 545, 549 (1961)). 

126. 329 U.S. 459 (1947). 

127. Id. at 470-71 (Frankfurter, J., concurring) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). Frankfurter characterized the botched execution attempt as "an innocent misadventure." Id. at 470. Justice Powell repeated Frankfurter's "pound of flesh" quotation in his own dissenting opinion in Furman v. Georgia, 408 U.S. 238, 452 n.43 (1972). 

128. See also Manufacturers' Fin. Co. v. McKey, 294 U.S. 442, 446 (1935) (quoting P.R. Mallory v. Grigsby-Grunow & Co., 72 F.2d 471, 473 (7th Cir. 1934)); United States v. Bethlehem Steel Corp., 315 U.S. 289, 324 (1942) (Frankfurter, J., dissenting); Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 162 (1974) (Douglas, J., dissenting). 
   A fortiori, none of the cases discussed here consider that Shylock's demand for a pound of Antonio's flesh as collateral on his loan might initially have been ironic. See WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 1, sc. 3, ll. 157-167. Nor that the exacting of a mutilating fine is contrary to Jewish law. Compare Rabbi Hertz's comment on the lex talionis ("eye for eye etc."): 
In the Torah, . . . this law of 'measure for measure' is carried out literally only in the case of murder. . . . [O]ther physical injuries which are not fatal are a matter of monetary compensation for the injured party. Such monetary compensation, however, had to be equitable, and as far as possible equivalent. This is the significance of the legal technical terms, "life for life, eye for eye, and tooth for tooth." 
J. H. HERTZ, THE PENTATEUCH AND HAFTORAHS 309 (2d ed. 1981). See also id. at 405; Jules Gleicher, Three Biblical Studies on Politics and Law, 23 OKLA. CITY U. L. REV. 869, 890-99 (1998). Could it not be said that Shylock's troubles begin with his deviation from Jewish law? Compare SHAKESPEARE, supra, at act 1, sc. 3, ll. 31-35, with id. at act 2, sc. 5, ll. 11-16. 

129. 524 U.S. 569 (1998). 

130. Id. at 581. 

131. Id. at 582 (referring to 136 CONG. REC. 28663). The other works are Jasper Johns's flag series, "Chorus Line," "Birth of a Nation," and "Grapes of Wrath." The Rohrabacher Amendment "would have restricted the endowment from funding projects that were obscene; that depicted human sexual or excretory activities or organs; that denigrated the beliefs, tenets or objects of a particular religion; or that denigrated a person or group on the basis of race, sex, handicap or national origin." Restrictions Removed on Arts Funding, 46 CONG. Q. ALMANAC 433 (1990). 

132. 392 U.S. 409 (1968). 

133. Id. at 446 (Douglas, J., concurring) (quoting SHAKESPEARE, supra note 128, at act 3, sc. 1, ll. 55-61). This use of Shakespeare to stake a claim for a disadvantaged racial minority parallels Douglas' other invocations of him on behalf of persons of illegitimate birth in Levy, and homosexuals in Boutilier. See Levy v. Louisiana, 391 U.S. 68 (1968); Boutilier v. Immigration & Naturalization Serv., 387 U.S. 118 (1967). Both Frederick Douglass and Justice Douglas prudently refrain from extending the quoted passage through the sequel lines: "If you prick us, do we not bleed? if you tickle us, do we not laugh? if you poison us, do we not die? and if you wrong us, shall we not revenge?" SHAKESPEARE, supra note 128, at act 3, sc. 1, ll. 61-63. 

134. 518 U.S. 515, 541 (1996). 

135. See Sandra Day O'Connor, Portia's Progress, 66 N.Y.U. L. REV. 1546, 1551 (1991). 

136. 466 U.S. 2, 15 n.23 (1984). 

137. See Kenneth W. Dam, Fortner Enterprises v. United States Steel: "Neither a Borrower Nor a Lender Be," 1969 SUP. CT. REV. 1. 

138. See Virginia, 518 U.S. 515. See SHAKESPEARE, supra note 128, at act 4, sc. 1. 

139. 409 U.S. 109, 120 (1972) (Douglas, J., dissenting). 

140. See id. at 121. 

141. On the other hand, Justice Stevens' "grand tally" of eleven citations includes several replications, and Justice Douglas's nine may be more meaningful. 

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