p 659, The Oxford Companion to the Supreme Court of the United States, edited by Kermit L. Hall, James W. Ely, Joel B. Grossman

A complex, narcissistic bachelor, he was a priestly jurist whose support of African-Americans, aliens, criminals, dissenters, Jehovah's Witnesses, Native Americans, women, workers, and other outsiders evoked a pun: "tempering justice with Murphy " As he wrote in Falbo v. 'United States (1944), "The law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens ainst discrimination and persecution." (p. 561)

Google doesn't show the page number, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, By Noah Feldman

If as attorney general, Murphy sometimes seemed like an inquisitor, on the Supreme Court he emerged as a thoroughgoing liberal. Siding instinctively with the underdog, he would go on to write many dissents—one of them among the bravest in the history of the Supreme Court. The other justices found him a figure of fun—there he goes, they would say, "tempering justice with Murphy." Perhaps as a result of his colleagues' ribbing—and his own lack of interest in the technical side of the law—Murphy was deeply unhappy on the Supreme Court.

Do the above quotes suggest that Justice Murphy was liberal? If so, then doesn't the verb temper contradict his judicial liberalism? What did I misunderstand?


I can see why this might be confusing.

What, exactly, is justice in the phrase at hand? Is it the morally correct balance of right and wrong or punishment and reward, which is how the average person would probably define it, or is it appropriately following and applying laws and legal precedents, which might well be the way an agent of the courts would use the word? Definitions 1.1 and 1.2, respectively.

As shown in both passages, Murphy is quite keen on showing mercy to the unfortunate, hence the pun on "justice tempered with mercy". (Aside: the earliest use of this phrase I know of is Milton's Paradise Lost, but I suspect it is older.) The correct sense of temper here is definition 2: act as a neutralizing or counterbalancing force. Why?

US Supreme Court justices are supposed to consider the cases brought before them in a very narrow fashion. Their duty is to apply the US Constitution and legal precedents to answer the question at hand, which is almost always considerably smaller in scope than it was in the lower courts. As mentioned in the quotes, it is a highly technical job. To go beyond these bounds would be an unjust use of power, because it would violate the terms of their responsibilities as laid out in the Constitution.

Thus, Murphy is counterbalancing justice (i.e., proper interpretations or applications of the law) by ruling in favour of what he feels is morally fair or correct, even if that goes against the dictates of the law.

The pun is indeed commentary on Murphy's judicial liberalism (definition 3). It is not sarcastic (Murphy did show mercy to the downtrodden), but neither is it positive, because it implies that Murphy significantly overstepped the bounds of appropriate action or good taste. Note that liberal can be a tricky word to understand correctly in the world of politics, as evidenced by the different definitions.

  • The pun is derisive. The justices who disagreed with Murhpy's non-technical approach were the ones using the pun. They were being sarcastic. The other justices found him a figure of fun—there he goes, they would say, "tempering justice with Murphy." – Tᴚoɯɐuo Oct 8 '14 at 16:16
  • I don't think you understand the difference between simple negativity and sarcasm. You're claiming that Murphy wasn't apt to show mercy? That's obviously not so. – Esoteric Screen Name Oct 8 '14 at 16:18
  • You're right. I misunderstand sarcasm. You understand it perfectly. – Tᴚoɯɐuo Oct 8 '14 at 16:25
  • @TRomano: I apologise if I misread, but is your last comment sarcastic? – Greek - Area 51 Proposal Oct 29 '14 at 10:03
  • The answer to your question is to be found in the word "perfectly". – Tᴚoɯɐuo Oct 29 '14 at 12:03

The above quotes state outright that Murphy was liberal:

on the Supreme Court he [Murphy] emerged as a thoroughgoing liberal

It's not clear to me which meaning of the verb temper you are thinking of, so to be clear, the relevant definition is:

Act as a neutralizing or counterbalancing force to (something): their idealism is tempered with realism [source: http://www.oxforddictionaries.com/definition/english/temper]

As @Tim Romano points out, the original phrase is "Justice tempered with Mercy"; the idea behind it is, having arrived at a fair and just conclusion under the law, we can then choose to offset the strictness of the law with a suitable application of mercy, based on circumstances that the law would ignore but that we feel are mitigating. Modifying that to "Justice tempered with Murphy" is a dig at Mr. Murphy, essentially saying that Murphy regularly ignores the requirements of the law, and instead is always supporting the so-called underdogs and letting them "off the hook" for wrongdoings, solely on the basis of his liberal leanings.


-Do the above quotes suggest that Justice Murphy was liberal?

This piece of your quote is more of answer to your question than the rest: "on the Supreme Court he emerged as a thoroughgoing liberal." But furthermore, yes, there is an association with supporting minority groups and political liberalism.

-If so, then doesn't the verb temper contradict his judicial liberalism?

No. It's a pun off the phrase "justice tempered with mercy." The word "justice" often carries with it the association of the punishment given to someone who has carried out a crime, as in the phrases "carrying out justice" and "bringing justice to criminals." So the phrase "justice tempered with mercy" means that the punishment for a crime was made more lenient due to mercy.

People were using the phrase, "justice tempered with Murphy," to make fun of Murphy. They were basically saying that if you are in a minority group, you can expect Murphy to be much more lenient.

I think the point on where you're getting confused is that it is implied that always siding with minorities is not always siding with justice, that Murphy was thought to be wrongfully favoring minorities that may not have been innocent.


The "pun" is versus the phrase Justice tempered with Mercy.

Mercy is an off-rhyme for Murphy.

https://translate.google.com/#en/fr/Mercy.%20Murphy. (listen)

Do you understand now?

ADDENDUM: With respect to the phrase "the technical side of the law". Consider this rather extreme hypothetical scenario of the technical application of justice.

CHIEF JUSTICE delivering the majority view: Appellant's petition for a stay of execution is denied. The state of Texarkanistan gives ninety (90) days for the filing of an appeal. Appellant took ninety-one (91). Appellant attempted to post his appeal in a timely manner, waiting until the final day allotted, but on that day the postal workers went on strike. However, there is no provision in the law to accommodate striking postal workers and ensuing delays. Therefore the Court decides in favor of the State of Texarkanistan, and the execution may proceed.

  • This doesn't answer the question. Why might people make the pun? Is it supposed to be sarcastic? What is the implied commentary on Murphy's judgements? – Esoteric Screen Name Oct 8 '14 at 15:44
  • The OP asked "Do the above quotes suggest Murphy was liberal" when the quote says EXPLICITLY that "he emerged as a thoroughgoing liberal". Then OP goes on to ask, "[D]oesn't the verb 'temper' contradict his judicial liberalism?" This indicates to me that OP does not understand the pun, and that that lack of understanding lies behind his question. OP needs to understand the pun before he can understand the passage. Once the pun is understood (and YES, IT IS SARCASTIC), the passage will be understood, assuming the OP understands the concepts of "justice" and "mercy" as they relate to law. – Tᴚoɯɐuo Oct 8 '14 at 15:57
  • @EsotericScreenName: Than you to both. I confirm that I hadn't seen the pun before and am now happily enlightened! – Greek - Area 51 Proposal Oct 29 '14 at 10:01

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