Roberts’s Frost

The report is a gem, as are so many of the chief’s writings, and its discussion of the court’s conservative approach to technology has drawn much attention–TV cameras and the Internet today, pneumatic tubes a century ago. So, too, has its discussion of Chief Justice Earl Warren’s extraordinary treatment of the court’s unanimous opinion in Brown v. Board of Education— reading aloud the full opinion before releasing paper copies to the press, as law professor Josh Blackman highlights.

But what jumped out to me was a subtle reference, on page 2, to Robert Frost: “But not even things gray can stay,” an echo of Frost’s “Nothing Gold Can Stay.” (Either that, or the Chief is fan of Sweden’s adorable country duo, First Aid Kit.)

It’s not Roberts’s first reference to Frost–far from it. He famously quoted Frost in the court’s farewell letter to the retiring Justice Souter: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake.'” (Souter replied in kind, quoting Frost’s “Two Tramps in Mud Time.”)

Indeed, this is not even the first of Roberts’s year-end reports to quote Frost. He closed his 2006 report with a word of thanks to judges, judicial staff, and their families: “As Robert Frost reminded us — ‘from the heart,’ we work as one, whether —”together or apart.” 

Roberts expanded upon that point, and upon Frost more broadly, a year later, at the Fourth Circuit’s Judicial Conference. At the Greenbrier in West Virginia, he spoke at length on his appreciation of Frost’s poetry, and its relevance to his work on the court, especially as it relates to the lower-court judges in attendance. What follows is a long excerpt from his address:

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Now I like Frost’s poetry, even though I sometimes wonder if he understood the effect of his words. Frost once remarked that he saw his role as spreading out words like toys on the so that people would trip over them in the dark. Well, I have read Frost’s poetry, and I have tripped over toys in the dark, and I can assure you the two are completely different experiences. I will leave it to you to decide which is easier: understanding Frost’s words or interpreting Supreme Court decisions.

But I think I know what Frost was aiming at in the poem that I quoted in my report. It’s called “The Tuft of Flowers.” And when Frost published it in 1913, he included two words next to its title: about fellowship.

The poem describes in 20 perfectly rhyming couplets, the old New England process of cutting fields of grass. One person would go out in the morning dew and cut the grass using a hand scythe, one of those things you swing around. Another would follow along a little bit later to turn the cut grass, so that it could dry properly in the sun.

Now the poem speaks from the perspective of the second person, the one turning the grass. Working the empty field, he thinks of the grass cutter who preceded him:

But as the grass turner continues his work he comes upon a clump of flowers standing among the cut grass the grass cutter must have intentionally saved. The grass turner instantly feels a kinship and a bond with person whose the labors and good judgment had preceded his own. And as he continues his work alone in the field, he revises his views. In the words of the poem:

I think that Frost’s poem captures one of the most rewardings aspects of participating in the judicial process — that of fellowship.

Judicial work, like much legal work, is largely solitary. We often labor alone in our chambers: reading briefs; reading cases, records; writing opinions. That work, like the work of the grass turner in Frost’s poem, may be solitary but depends on the toil of others who preceded us.

And from time to time, we come upon tufts of flowers left by those who similarly worked in solitude before us. And when we do, we recognize the kinship of our calling and are reminded that we work together, whether together or apart.

Now it would be a mistake to think that Frost was naive about fellowship and the challenge of working together toward common objectives. When Frost published one of his most famous poems, “Mending Wall,” he interestingly wrote that it takes up the theme where a tuft of flowers laid it down. “Mending Wall” touches on the problem of finding common ground.

In “Mending Wall,” Frost describes in 45 non-rhyming lines two neighbors who follow a yearly spring ritual of jointly repairing damage to an ancient stone wall between them. One tries to engage the other in a discussion of why they need to maintain the wall, since neither keeps livestock anymore that must be fenced in or out. But the other simply falls back on the saying, “good fences make good neighbors,” rotely repeating the proverb without examining why it holds true.

Now, of course, I’m no expert on Frost and I’m sure that the poem is subject to various interpretations. But I think one of his points is that an important part of fellowship is ongoing inquiry, examination and debate. That is surely a part of a healthy judicial fellowship that seeks consensus where consensus is possible – and, where not possible, seeks to ensure that the basis of any disagreement is carefully and civilly explored in good faith.

At the end of the inquiries, examinations and debates, no matter how passionately felt or vigorously expressed, judges remain colleagues, neighbors and friends who are committed to their collaborative calling.

In evaluating the Supreme Court’s work, it’s easy to focus simply on whether the Court affirmed or reversed the decisions under review. But I would like to remind you that in reviewing judicial decisions, my colleagues and I often came upon what Frost would call “tufts of flowers.” We very much appreciate the skill, insight, and dedication of our colleagues in the courts of appeals and district courts, whose work preceded our own. We know we work together with you, even though we labor apart.

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Adam J. White is an adjunct fellow at the Manhattan Institute, and a lawyer in Washington, D.C.