Various Volokh Conspirators (all of them unindicted, so far as I know) have commented on the snarky NYT op-ed about the Federalist Society’s victory jamboree. But none of them mentioned the one assertion in the op-ed that I thought actually reflected serious discredit on the organization: to wit, that a satirical song sung at a black-tie banquet lambasted “Brennan, Marx, and Lenin.”

Of course, Justice Brennan had virtually nothing in common with the Communists except for his sympathy (genuine in his case though perhaps not theirs) with the poor and outcast. If, as various right-bloggers have claimed, Stalin was as bad as Hitler (and that’s certainly a supportable proposition), then why isn’t (falsely) calling someone a Communist, or even likening him to one, as bad as calling him, or likening him to, a Nazi?

In any case, making fun of dead people is vulgar: substantially worse, in my book, than making political speeches at a memorial service for a politician.

I’d be happy [well, to be honest, I’d be willing] to learn that the song was not as reported, or that the context made it innocuous, or that members of the society present protested. But I’m struck by the silence so far on what seems to me to be the key point.

[Links: Phillippe DeCroy here, Eugene Volokh here. Eugene mentions a post by Orin Kerr, but I can’t find it.]


A reader suggests that the rule against mocking the dead hardly applies to Brennan, who’s been gone for a decade. On reflection, it seems to me that there are two different principles at work here.

First, the recently dead ought to be largely exempt from criticism of any kind, out of consideration for the grief of the survivors. (And perhaps also for the same reasons that it’s wrong to desecrate a corpse: respect for the dead is a very distinctive and very, very ancient characteristic of human beings as a species, and probably linked in deep ways to our capacity to live socially, so it’s best not to mess with it.)

The strength of that class of arguments for “de mortuis nil nisi bonum” presumably diminishes with time, as my friend suggests. If you think Cicero, for example, was a coward, a toady, an ingrate, a windbag, and a practitioner of judicial murder and political assassination in a thoroughly bad cause, go ahead: don’t hold back.

But there’s a second, less time-limited argument: the dead (and those otherwise incapacitated, such as victims of the dementias) are unable to respond, which makes attacking them, especially attacking them unfairly, an exercise in cowardice.

Sometimes there’s good reason to attack the dead: in particular, when their names are being used as icons, as Cicero’s still is. Even then, it ought to be done with decency, and of course with respect for the truth. But William Brennan hardly fits that category. Pissing on someone’s grave just for fun is a rather crude form of amusement.

So I still think the friends of the Federalist Society — especially those who went on and on about the Wellstone memorial service — ought to either stand up and justify making fun of Brennan, stand up and explain why they weren’t doing so, or acknowledge that the song was, at least, in bad taste.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com