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Judges on Judging
Fifth Edition
Judges on Judging
Views from the Bench

Fifth Edition

Collected and edited by

David M. O’Brien
University of Virginia
FOR INFORMATION:

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 is a registered trademark of Congressional Quarterly Inc.

All rights reserved. No part of this book may be reproduced or utilized in any
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Printed in the United States of America.

Names: O’Brien, David M., editor.

Title: Judges on judging : views from the bench / collected and edited by David M. O’Brien, University of
Virginia.

Description: Fifth edition. | Washington DC : SAGE CQ Press, 2016. | Includes bibliographical references.

Identifiers: LCCN 2015051477 | ISBN 9781506340289 (pbk. : alk. paper)

Subjects: LCSH: Judges—United States. | Judicial process—United States. | Political questions and judicial
power—United States.

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Contents
Preface
Introduction
Part I Judicial Review and American Politics: Historical and Political
Perspectives
Introduction
1. The Doctrine of Judicial Review: Mr. Marshall, Mr. Jefferson, and
Mr. Marbury
2. The Supreme Court in the American System of Government
Part II The Dynamics of the Judicial Process
Introduction
3. The “Fight” Theory versus the “Truth” Theory
4. The Adversary Judge: The Experience of the Trial Judge
5. The Business of the U.S. District Courts
6. What I Ate for Breakfast and Other Mysteries of Judicial Decision
Making
7. Whose Federal Judiciary Is It Anyway?
8. What Really Goes On at the Supreme Court
9. The Supreme Court’s Conference
10. Deciding What to Decide: The Docket and the Rule of Four
11. The Role of Oral Argument
12. The Dissent: A Safeguard of Democracy
Part III The Judiciary and the Constitution
Introduction
13. Commentaries on the Constitution of the United States
14. The Path of Law
15. The Judge as a Legislator
16. The Notion of a Living Constitution
17. A Relativistic Constitution
18. The Jurisprudence of Judicial Restraint: A Return to the Moorings
19. Tradition and Morality in Constitutional Law
20. What Am I, a Potted Plant? The Case against Strict
Constructionism
21. Originalism: The Lesser Evil
22. Judging
23. The Constitution: A Living Document
 24. The Constitution of the United States: Contemporary Ratification
25. Originalism and History
26. On Constitutional Interpretation
27. Speaking in a Judicial Voice: Reflections on Roe v. Wade
28. Our Democratic Constitution
29. Against Constitutional Theory
Part IV Our Dual Constitutional System: The Bill of Rights and the
States
Introduction
30. The Bill of Rights
31. Guardians of Our Liberties—State Courts No Less Than Federal
32. First Things First: Rediscovering the States’ Bills of Rights
33. What Does—and Does Not—Ail State Constitutional Law
34. State Courts at the Dawn of a New Century: Common Law Courts
Reading Statutes and Constitutions
Appendix A: Constitution of the United States, Article III
Appendix B: The Federalist No. 78, Alexander Hamilton
Appendix C: Selected Bibliography of Off-the-bench Commentaries
Appendix D: Time Chart of Members of the Supreme Court of the United
States
About the Editor
Preface

The First Edition of this collection of judges’ speeches and writings originated
while I was working as a judicial fellow in the office of the administrative
assistant (now the office of counselor) to the chief justice at the Supreme Court
of the United States. I remain grateful for the opportunities that Chief Justice
Warren E. Burger and his administrative assistant, Mark Cannon, afforded me,
along with the support of Edward Artinian and of reviewers and colleagues,
particularly Henry J. Abraham. That first edition received the American Bar
Association’s Certificate of Merit for contributing to the public’s understanding
of law and courts. Like the first edition, subsequent editions have been well
received and used in a range of courses. Those who teach and study judicial
processes and judicial policymaking have found the breadth of coverage useful
in presenting the contrasting views and experiences of state and federal judges,
especially the differing experiences of trial and appellate court judges, as well as
those who have served or are serving on the Supreme Court. Others find the
chapters presenting competing judicial philosophies and approaches to
interpreting the Constitution and Bill of Rights especially useful in courses on
constitutional law, jurisprudence, and judicial politics. University of California,
Berkeley, law school professor Martin Shapiro’s comment on an earlier edition
perhaps expressed it best: “Imagine the fun of teaching a course in which you
ask students to compare opinions of particular judges with their off-the-bench
writings on judging. What a great supplement to a regular constitutional law
course.”

In this fifth edition, the introductory essays have been thoroughly revised and
updated. They highlight from a historical perspective the increasing frequency of
and controversies over current judges’ and justices’ off-the-bench commentaries.
This fifth edition includes four appendices: Appendix A, Article III of the U.S.
Constitution, establishing the basis for the federal courts; Appendix B,
Alexander Hamilton’s Federalist No. 78 on the role of the federal judiciary and
the power of constitutional interpretation; Appendix C, a selected bibliography
of off-the-bench commentaries; and Appendix D, a time chart of members of the
Supreme Court of the United States.

This edition incurred still more debts. I appreciate the permission to incorporate
new material and the suggestions over the years of the following reviewers:
Elizabeth Beaumont, University of Minnesota; Christopher Bonneau, University
of Pittsburgh; Russell Fowler, University of Tennessee at Chattanooga; Banks
Miller, Ohio State University; Patrick Schmidt, Southern Methodist University;
Kim Seckler, New Mexico State University; James Todd, University of Arizona;
Michael C. Tolley, Northwestern University; Mark Petracca, University of
California, Irvine; Douglas E. Edlin, Dickinson College; John Hermann, Trinity
University; Susan Mezey, Loyola University of Chicago; Adam W. Nye,
Pennsylvania State University; and Jennifer Espronceda. I also appreciate the
support and work of Nancy Matuszak and Charisse Kiino at CQ Press.

As with earlier editions, I hope students will find these revisions and new
additions useful in understanding judicial processes as well as the work and
problems confronting courts. It is also hoped that the collection will continue to
engage them in the contemporary and enduring debates about competing judicial
philosophies and approaches to constitutional interpretation, judging, and the
role of courts in a democracy.

David M. O’Brien

January 2016
Introduction

Justices and judges appear to be more outspoken and in more venues than ever
before. All nine on the Roberts Court (2005–) participated in a C-SPAN special,
The Supreme Court: Home to America’s Highest Court,1 and granted interviews
to journalists for books on the Court.2 Chief Justice John G. Roberts gave a
prime-time interview to ABC’s Nightline; Justice Ruth Bader Ginsburg spoke to
CBS’s Mike Wallace, among many other interviews she granted; Justices
Antonin Scalia and Stephen G. Breyer have engaged in off-the-bench debates on
their different approaches to constitutional interpretation and the Court’s use of
foreign judicial decisions and law; and Justice Breyer promoted the 2015
publication of his book The Court and the World: American Law and the New
Global Realities3 in a series of media interviews, including on CBS’s The Late
Show with Stephen Colbert. Eight justices of the Roberts Court agreed to
interviews on the art of legal advocacy;4 their lectures and Q&As at law school
forums also now often reappear on YouTube. Indeed, some lower-court judges
and Court watchers now refer to them as “celebrity justices.”5

Justices and judges also have not been shy about speaking out on controversial
matters, including cases that have come before or are likely to come before the
Court. Justice Scalia, for instance, defended his refusal to recuse himself from a
case involving his hunting companion, Vice President Dick Cheney, who headed
an energy task force for President George W. Bush, responding, “For Pete’s
sake, if you can’t trust your Supreme Court justice more than that, get a life. . . .
I think the proudest thing I have done on the bench is not allowed myself to be
chased off that case.”6 That was not the first time. On another occasion Justice
Scalia criticized the ruling of the Court of Appeals for the Ninth Circuit holding
that the phrase “one nation, under God” in the Pledge of Allegiance violated the
First Amendment. That decision was a mistaken attempt, in his words, to
“exclude God from the public forums and from political life.”7 When the
Supreme Court later granted review of that decision, Michael A. Newdow, who
had brought the suit Elk Grove Unified School District v. Newdow (2004), asked
that Justice Scalia recuse himself from the case and forced him not to participate
in the decision because of his off-the-bench remarks. Justice Scalia has also been
outspoken about the direction of the Court and abortion,8 among other
controversial matters,9 such as same-sex marriages—even before the Court’s
ruling extending constitutional protection to such marriages in Obergefell v.
Hodges (2015).10 In his words, “If we cannot have moral feelings against
homosexuality, can we have it against murder? . . . Can we have it against other
things? I don’t apologize for the things I raise.”11 On and off the bench, Justice
Scalia has championed “textual originalism”—that is, as he put it in a
coauthored book, Reading the Law: The Interpretation of Legal Texts (2012),12
judges should “look for meaning in the governing text, ascribe to that text the
meaning that it has borne from its inception, and reject judicial speculation about
the drafters’ extra-textually derived purposes and the desirability of the fair
reading’s anticipated consequences.” In a lecture at the American Enterprise
Institute he thus explained that because he is a “textual originalist,” a lot of
controversies reaching the Court are “easy.” “The death penalty? Give me a
break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the
Constitution prevented restrictions on abortion. Homosexual sodomy? Come on.
For 200 years, it was criminal in every state.”13

Nor is Justice Scalia alone in addressing major controversies in interviews,

lectures, and speeches.14 Justice Ginsburg has ventured, “I do not believe the
Court’s overruling Roe v. Wade—which I don’t think will happen—will prevent
women of means from accessing an abortion. It will have a devastating impact
on poor women.” She further stated that if it were up to her the Court would “go
back to the day when the Supreme Court said the death penalty can’t be applied
with an even hand.”15 Whereas some on the current Court—like Justices
Clarence Thomas and Samuel A. Alito—tend to be more reticent about speaking
out, except before law schools or small groups of students, they are not above
the fray. Justice Thomas, for example, complained publicly that the Roberts
Court was making too many “really hard calls” that should be left to elected
officials.16 And Justice Alito, at a meeting of the conservative Federalist Society,
took on critics and staunchly defended the bare majority’s ruling in Citizens
United,17 which extended First Amendment protection to unlimited campaign
contributions by corporations and unions, observing that “the question is
whether speech that goes to the very heart of government should be limited to
certain preferred corporations; namely, media corporations. . . . Surely the idea
that the First Amendment protects only certain privileged voices should be
disturbing to anybody who believes in free speech.”18 So, too, Justice Kennedy,
after handing down the bare majority’s opinion over four biting dissents in
Obergefell, appeared to take to the stump in a series of speeches and Q&As
during the following summer that defended the ruling. Countering Justice
Scalia’s dissent in Obergefell that blasted the decision by five unelected
“lawyers,” Justice Kennedy at a Utah state bar conference proclaimed: “The
Constitution doesn’t come from on high. It’s yours. It came from you. . . . It
takes time to understand the meaning and the dynamics and the majesty of the
Constitution. We learn by experience, we learn by thought, we learn by rational
discourse. . . . The work of freedom is never done.”19 Likewise, Justice
Kennedy, who wrote for a bare majority in Brown v. Plata (2011),20 holding that
prison overcrowding in California violated the Eighth Amendment ban on cruel
and unusual punishment, has been outspoken about the “ongoing injustice of
great proportions” arising from long prison sentences, solitary confinement—
that “drives men mad”—and prison overcrowding in the United States, which
has the world’s largest prison population.21

The American public nonetheless understands little about the courts and the
judicial process. To a reporter’s question of whether the average American
understands the judicial process, former congressman and later Federal Court of
Appeals judge Abner J. Mikva responded, “No. In a sense [people] know less
about the courts than they do about the Congress. They may have a lot of
mistaken views about Congress, but the problem with the courts is that they are
so mysterious. I worry about that a great deal. Some of my colleagues on the
bench think that is why the judicial branch is given a great deal of respect, that it
isn’t as well known as the other two branches. I hate to think that we’re only
beloved in ignorance.”22 Indeed, as retired justice Sandra Day O’Connor has
emphasized in interviews and lectures, opinion polls find that two-thirds of the
public can name at least one of the judges on the Fox television show American
Idol, but less than half can name even one justice on the Supreme Court.23

Whatever mystery surrounds the judiciary may stem in part from what Judge
Jerome Frank called “the cult of the robe”24 and Justice Felix Frankfurter
felicitously described as “judicial lockjaw.”25 A tradition of judicial lockjaw
evolved originally because of a number of institutional, political, and historical
considerations. Article III of the Constitution, which vests the judicial power in
one Supreme Court and in such lower federal courts that Congress may
establish, provides that the judiciary shall decide only actual cases or
controversies (see Appendix A). From the earliest days, federal courts have
therefore refused to render advisory opinions or advice on abstract and
hypothetical issues.26 Intimately related to the view that advisory opinions would
violate the principle of separation of powers and compromise judicial
independence, justices and judges contend that they should not offer off-the-
bench commentaries about their decisions and opinions. As Justice William J.
Brennan Jr. once recounted,

A great Chief Justice [Arthur T. Vanderbilt] of my home State [New

Jersey] was asked by a reporter to tell him what was meant by a
passage in an opinion which has excited much lay comment. Replied
the Chief Justice, “Sir, we write opinions, we don’t explain them.”
This wasn’t arrogance—it was his picturesque, if blunt, way of
reminding the reporter that the reasons behind the social policy
fostering an independent judiciary also require that the opinions by
which judges support decisions must stand on their own merits without
embellishment or comment from the judges who write or join them.27

Explanations of judicial opinions have also been thought to be ill-advised for

more prudential reasons: Justice Hugo L. Black, among others, felt that off-the-
bench remarks might prejudge issues that could come before the courts,28 and
Justice Harlan F. Stone counseled that such public discussions might actually
invite litigation.29

Judicial opinions, whether those of trial or appellate judges, of course do not

purport to describe the decision-making process. They are intended to justify the
decision in a particular case, and they therefore reveal merely the surface of the
judicial process. As Justice Frankfurter once noted, “The compromises that an
opinion may embody, the collaborative effort that it may represent, the
inarticulate considerations that may have influenced the grounds on which the
case went off, the shifts in position that may precede final adjudication—these
and like factors cannot, contemporaneously at all events, be brought to the
surface.”30

The constraints of judges’ “self-denying ordinance,”31 as Justice Benjamin N.

Cardozo observed, further inhibit disclosures about the deliberative and
decision-making processes. Justices’ revelations inevitably prove modest given
the institutional and political realities of judicial decision making. Unlike
legislative decisions, judicial decisions, particularly in the Supreme Court and
multijudge appellate courts, are collegial and reached in an atmosphere that
Justice Lewis F. Powell Jr. has described as one of “the last citadels of jealously
preserved individualism.”32 Off-the-bench remarks about the deliberative
process are therefore controlled by self-imposed standards of propriety that
appear necessary to preserving the confidentiality—institutionally and
personally—required of life-tenured judges who must sit together and collegially
decide cases. For as Chief Justice Earl Warren recollected, “When you are going
to serve on a court of that kind for the rest of your productive days, you
accustom yourself to the institution like you do to the institution of marriage, and
you realize that you can’t be in a brawl every day and still get any satisfaction
out of life.”33

The lessons of history have also inclined members of the judiciary to refrain
from voicing their views not only on matters pertaining to the judicial process
and law but also on politics more generally. During the founding period, judges
in fact engaged in intensely partisan debates about differing views of
constitutional principles. Chief Justice John Jay ran for the governorship of New
York but did not campaign, as did Justice William Cushing in running for that
office in Massachusetts; and Justice Samuel Chase campaigned for the election
of John Adams as president.34 By the late 1840s and 1850s, however, there
emerged considerable opposition to judges’—specifically Justice John McLean’s
—active participation in partisan politics.35 Yet throughout the late nineteenth
and twentieth centuries, justices and judges continued to undertake some
extrajudicial roles and activities, such as arbitrating boundary disputes and
heading special commissions. Charles Evans Hughes resigned from the bench to
run for the presidency against Woodrow Wilson in 1916, and Chief Justice
William Howard Taft advised the Republican Party on a range of matters;
Justices Frankfurter and Louis D. Brandeis had long, close relationships with
President Franklin Roosevelt. Members of the Court have also, in extraordinary
circumstances, accepted extrajudicial assignments; notably, Justice Owen J.
Roberts headed a presidential commission to investigate Pearl Harbor, and
Justice Robert H. Jackson served as chief prosecutor of Nazi leaders at the
Nuremberg trials. Chief Justice Earl Warren reluctantly headed an investigation
of the assassination of President John F. Kennedy. And, as constitutionally
required, Chief Justice William H. Rehnquist presided over the Senate’s
impeachment trial of Democratic president Bill Clinton.

During the early part of the nineteenth century, the principal forum for judges’
pronouncements on judicial and political issues was provided by Congress’s
requirement that justices of the Supreme Court travel to the various circuits and
sit on cases as well as deliver charges to grand juries there. Although most
members of the Court confined their grand jury charges to discussions of their
views of constitutional principles or newly enacted legislation, others used the
occasion to issue political broadsides and thus enter into the heated debates
raging between Federalists and Jeffersonian Republicans. This practice
culminated in 1805 in the impeachment and trial of Justice Samuel Chase for
“disregarding the duties and dignity of his judicial character.” Specifically, the
eighth article of impeachment charged the justice with “pervert[ing] his official
right and duty to address the grand jury . . . on matters coming within the
province of the said jury, for the purpose of delivering to the said grand jury an
intemperate and inflammatory political harangue, . . . a conduct highly
censurable in any, but peculiarly indecent and unbecoming in a judge of the
supreme court of the United States.”36

Despite these institutional, political, and historical considerations, off-the-bench

commentaries are the norm. To be sure, there have been some especially
reclusive judges: Chief Justices Roger B. Taney, Morrison R. Waite, Edward D.
White, and Harlan Fiske Stone, as well as Justices Cardozo and Thurgood
Marshall, rarely ventured forth after they assumed their seats on the bench.
Among contemporary justices, Justice David H. Souter notably continued that
tradition. Yet even those judges—like Justice Frankfurter—professing judicial
lockjaw nevertheless have often publicly addressed a wide range of judicial and
extrajudicial matters.37 Moreover, a number of justices on the Roberts Court
(2005–)—particularly Justices Scalia, Kennedy, Ginsburg, Breyer, Sotomayor,
and Kagan—have been very outspoken in lectures and symposia at law schools
and elsewhere, and have promoted their books and competing judicial
philosophies in interviews on C-SPAN, PBS, CNN, ABC, CBS, and NBC and in
social media.38

Indeed, in spite of the tradition of judicial lockjaw, which appears increasingly

honored more often in rhetoric than in practice, justices and judges long have
been outspoken. Moreover, in historical perspective justices and judges appear to
be more candid publicly and willing to publicly address major legal and political
controversies.

A typical, nonobjectionable, and still prevalent form of off-the-bench

commentary may be found in various justices’ and judges’ works on the
Constitution and public law. Among his numerous treatises, Justice Joseph
Story’s Commentaries on the Constitution of the United States39 became a
classic (excerpted in chapter 13); it was required reading for generations of
lawyers, judges, and court watchers.40 Justices James Wilson41 and Henry
Baldwin42 also wrote major works in the early nineteenth century, as did Justices
Samuel Miller43 and Benjamin Curtis44 in the latter part of the century. In the
twentieth century, comparable works tend to place the Court in a more political
context and to emphasize individual justices’ avowed judicial and political
philosophies. Justice Robert Jackson’s two books45 are representative of
justices’ and judges’ recognition of the expressly political role of courts in our
system of free government.46 Justices Hugo Black,47 William O. Douglas,48 and
Wiley Rutledge49 and Chief Justice Rehnquist wrote several books.50 Justices
Scalia and Breyer have also advanced their respective judicial philosophies in
books.51 Justice O’Connor published a collection of her speeches and essays in
The Majesty of the Law52 and an autobiography of her life prior to joining the
Court. Likewise, Justice Thomas wrote an autobiography of his early life,53 as
did Justice Sotomayor about her life before becoming the third woman and first
Latina to serve on the Court.54

Whereas justices and judges, like other political actors, reserve their most
personal observations for private correspondence, they communicate their views
and insights in numerous and diverse forums: from university and law school
commencements to celebrations, annual meetings of law-related organizations,
and bar association conventions; in newspaper, magazine, and broadcast
interviews; and in articles and books. Occasionally, judges have written to
members of Congress and testified before Congress on pressing issues
confronting the courts and the country.55

The topics addressed by justices and judges are no less numerous and diverse;
they range from rather rare comments about specific decisions to more frequent
observations about the operation of the judiciary and the administration of
justice. Despite the self-imposed credo that members of the bench “should not
talk about contemporaneous decisions,”56 judges have occasionally sought to
clarify, explain, or defend their rulings. Chief Justice John Marshall, writing to a
newspaper under the pseudonym “A Friend to the Union,” defended his
landmark decision in McCulloch v. Maryland (1819),57 and in 1979 five justices
sought to explain their ruling in a controversial case involving public access to
judicial proceedings.58 More typically, judges who publicly address matters of
public law—such as the constitutional protection afforded private property,59 the
meaning of the First Amendment,60 or the evolution of administrative law and
regulatory politics61—do so from a historical and doctrinal perspective.62

There are, however, some matters, such as judicial administration and legislation
affecting the courts, on which, as Judge Irving Kaufman observed, “judges must
speak out.”63 Indeed, in recent years not only the chief justice, who has
responsibility for overseeing the federal judiciary, but an increasing number of
state and federal judges have voiced their views on rising caseloads, the
“bureaucratic justice,” evolving federal-state court relations, the operation of
different aspects of the judicial process, and the administration of justice more
generally. Chief Justice Warren E. Burger, for instance, began an annual practice
of issuing a year-end report on the federal judiciary to highlight judicial reforms
and the impact on the judiciary of pending legislation. And Chief Justices
Rehnquist and Roberts continued that practice.

The value of off-the-bench commentaries depends on what they reveal about

how judges think and what they think is important in understanding the judicial
process. Their value in part turns on the relationship between judges’ rhetoric
and the reality of the judicial process and behavior. Judges, like other political
actors, are neither always in the best position to describe their role nor possessed
of the critical detachment necessary to assess their presuppositions and the ways
in which their policy orientations affect their decisions and the judicial process.
Moreover, the tradition of judicial lockjaw and the operation of the judicial
system provide judges with fewer opportunities than those of other political
actors to explain their decision-making role. Judges’ descriptions of the
deliberative process, for example, tend to be rather inhibited and formal in
emphasizing the rule-bound nature of the process. Their explanations are
therefore only partial and must be supplemented with what we learn from social
science, history, and philosophy. What judges say remains nonetheless crucial
for understanding the judicial process and the role of courts in American politics.
This is so precisely because the Constitution structures the political process, and
judges occupy a unique position and vantage point within our system of
governance. Off-the-bench commentaries may thus prove instructive about
judicial politics and policymaking, the governmental process, and enduring legal
and political principles.

As justices’ and judges’ off-the-bench commentaries have increasingly broken

with the tradition of judicial lockjaw, debate about judges’ off-the-bench
communications has, ironically, in turn grown and intensified. That is in part
because some judges, such as Court of Appeals for the Seventh Circuit judge
Richard A. Posner, are so prolific in contributing articles and books addressing
jurisprudential concerns relating to constitutional and statutory interpretation.
Indeed, whereas Justice Douglas authored some thirty books while on the bench
(1939–1975), Judge Posner (excerpted in chapters 20 and 29) has published
more than forty books and more than 300 articles.64

Moreover, other judges have sharply attacked the more conservative directions
taken by the Rehnquist and Roberts Courts. Ninth Circuit Court of Appeals
judge John T. Noonan, a Reagan appointee, lamented the Rehnquist Court’s
rulings expediting the implementation of capital punishment and even suggested
that the Court’s rulings compel lower federal courts to commit “treason to the
Constitution.”65 Another appellate judge on the Ninth Circuit castigated
“Supreme Court decisions [for] subordinating individual liberties to the less-
than-compelling interests of the state and stripping lower federal courts of the
ability to protect individual rights.”66

Such off-the-bench comments have in turn been denounced as unjudicial. As

Senior Judge Arthur L. Alarcon, who sat on the U.S. Court of Appeals for the
Ninth Circuit, put it, “Public attacks on Supreme Court decisions by federal
judges may incite unstable members of society to engage in civil disobedience
and to defy the decisions of our nation’s highest court, or worse, to commit acts
of violence against its members.”67 Likewise, others have expressed their
concerns about the range and propriety of judges’ off-the-bench commentaries.68

Nonetheless, Ninth Circuit Court of Appeals judge Stephen Reinhardt, among

others, vigorously defends off-the-bench comments:

In recent years there has been a noticeable trend toward more judicial
speech; at the same time, there remains a firmly entrenched view
within the federal judiciary that judges should remain wholly “above
the fray” and avoid revealing any of their beliefs or fundamental
values to the public, except to the extent that they are necessarily
disclosed in published opinions. It is this concept of judicial abstinence
that needs careful examination—and ultimately puncturing.

I have a more generous view than many of my colleagues regarding

the issues on which judges may speak and the fora in which they may
properly present their views. I think that we have an obligation to help
 educate not just the legal community but the public at large about
matters concerning which we have particular knowledge or
experience. I also believe that we have a duty to be open and
forthcoming with the public, and, correlatively, to subject ourselves to
criticism just like all the other members of a democratic society. . . .

It is, of course, impossible to draw clear lines between what speech is

appropriate and what is not. Like the many other categories we invent
in legal decision making, the boundaries are unclear and imprecise—
perhaps more so. Almost all judges agree that we may talk to the
public about the Constitution and the Bill of Rights in the abstract—
discussions that often amount to little more than self-congratulatory
flag-waving. There is also a general belief that we should not provide
specific or detailed public answers to previously unresolved questions
regarding those rights, because we may be faced with deciding those
very questions in subsequent judicial proceedings. What is
controversial is what lies “in between” the acceptable platitudes and
the forbidden particularities. . . .

I believe that judges should venture boldly into this in-between area—
that we should speak forthrightly about the role of courts in American
society, about the relationship between law and justice, about the true
meaning of the Constitution and some of its principal provisions, and
about our own personal visions of justice and judging. We should do
so in specific as well as general terms. . . . We should reveal to the
American public how the courts handle death penalty cases and just
what the impact is on the judicial system. We should be willing to
acknowledge that the Fourth Amendment is being sacrificed in our
eagerness to fight the war against drugs, and that such a sacrifice is
inconsistent with our constitutional heritage. . . . These are
controversial issues indeed. But I do not think that we should shy away
from speaking about them for that reason. In fact, I think it is precisely
because these issues are controversial and difficult that we should
share our special knowledge and experience with the public.69

Furthermore, not only will off-the-bench commentaries continue, but they are
likely to remain sometimes acerbic and engage justices and judges in
occasionally rather bitter debates over constitutional and statutory interpretation,
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body; a projection from the thoracic side-pieces, forming a long
pouch, into which a fold on the inner side of the elytra fits, the two
being subsequently locked by the action of some special projections.
This arrangement is similar to that which exists in the anomalous
family of water-beetles Pelobiidae. In order to make this mechanism
more perfect the side-pieces in Belostoma form free processes.
Martin has informed us that the young have the metasternal
episternum prolonged to form a lamella that he thinks may be for
respiratory purposes.[499] About twelve genera and upwards of fifty
species of Belostomidae are known. None exist in our isles, but
several species extend their range to Southern Europe. In the waters
of the warm regions of the continents of both the Old and New
Worlds they are common Insects, but as yet they have not been
found in Australia.

Fam. 24. Notonectidae.—Prosternum short, so that the legs are

placed near the back part of it as well as near the front; back of the
head overlapped by the front of the pronotum.—The water-boatmen
are extremely common in our ponds, where they may be seen rising
to the surface and raising the posterior extremity of the body for
breathing. They swim on their backs instead of in the usual position,
and have an elaborate arrangement of long hairs on the body to
assist them to carry about an air-supply. They are said to be lighter
than the water, and to have some difficulty in keeping away from the
surface. Notonecta glauca is the only British species, but we have a
second minute Insect, Plea minutissima, belonging to the family. It
lies in the mud at the bottom of shallow waters, and may sometimes
be fished up in great numbers. It is considered by some authors to
form a distinct family. The oviposition of Notonecta has been
observed by Regimbart; the eggs are inserted into the stems of
aquatic plants.

Fam. 25. Corixidae.—Prosternum short, as in Notonectidae; summit

of the head free from the thorax.—We have numerous species of the
genus Corixa in Britain; and others extremely similar in appearance
occur in various parts of the world. The head is remarkably free, and
capable of great rotation. On dissection it is found to be attached to
the thorax only by a narrow area; in this respect it differs widely from
Notonecta, which possesses an extremely large occipital foramen,
and the head of which possesses but little freedom of movement.
The extremely short proboscis is more or less retractile, and
therefore frequently appears absent. A second British genus consists
of a single species, Sigara minutissima. These Insects, unlike
Notonecta, are quite at home beneath the water, where they scurry
about with extreme rapidity, and occur sometimes in enormous
numbers. In Mexico the eggs of Corixa americana and of C.
femorata are used as food, and are said to be very nice. The Insects
themselves are used as food in both Mexico and Egypt. The species
of this family can make a noise beneath the water by rubbing the
front feet against the proboscis.[500] The males have a very complex
asymmetry of the terminal segments, and in some species possess
on one side of the dorsal surface a curious asymmetrical organ
consisting of rows of very closely-packed, intensely black, comb-like
plates, called by Buchanan White a strigil. This organ seems to be
similar to the peculiar structures found on the terminal segments of
certain species of Scutellerides.

Sub-Order II. Homoptera.[501]

Fam. 1. Cicadidae.—Head with three ocelli, placed triangularly on

the summit between the compound eyes; antennae consisting of a
short basal joint, surmounted by a hair-like process divided into
about five segments. Front femora more or less thick, armed with
teeth. Peduncle (or basal joints) of antennae without sensitive
organs.—This important family consists chiefly of large Insects, few
being as small as one inch across the expanded wings, while in
some the expanse is as much as seven inches. As a rule the four
wings are transparent and shining, with the nervures remarkably
distinct and dark coloured; but there are numerous forms where the
whole creature, including the wings, is highly pigmented in a showy
manner; frequently in black and yellow. Cicadas are said to be
without any special protection, and to be destroyed in considerable
numbers by birds and other animals. The body is broad and robust,
and is never shaped into the extravagant forms we meet with in
some of the other families of Homoptera.

Fig. 280—Cicada septendecim. North America. (After Riley.) A, Larva;

B, nymph; C, nymph skin after emergence of the imago, D; E,
section of twig with series of eggs; F, two eggs magnified.

Cicadidae are almost confined to the warmer regions of the earth,

but we have one species, a great rarity, in the extreme south of
England; altogether there are about 800 species known. These
Insects are seen above ground—so far as the life-histories are at
present known—only in the perfect condition, the creatures in their
earlier stages being subterranean and living on roots. As soon as the
individual comes out of the ground it splits open the nymph-skin, and
the perfect Cicada emerges. One species—the North American
Cicada septendecim—is a most notorious Insect owing to its life-
cycle of seventeen years. It is considered that the individual, after
nearly seventeen years of underground existence, comes to the
surface and lives for a brief period the life of a noisy Insect. This is
the only Insect at present known having so considerable a longevity.
This fact, and several other peculiarities, have attracted much
attention, so that there is an extensive literature connected with the
seventeen-year Cicada. It has a wide distribution over the United
States, but does not confine its appearance to every seventeenth
year, being found somewhere or other—frequently in numerous
localities—almost every year. The evidence as to its periodicity has
been obtained by taking the locality and other points into
consideration as well as the year of appearance. By so doing it has
been found possible to establish the existence of twenty-two broods
which are distinguished by consecutive numeration. This being done,
the evidence as to the years during which Cicadas have appeared in
any given locality is examined, and the result is believed to bear out
the view that the life-cycle of the individual Insect is really one of
seventeen years. According to this view there are, underground, in
certain localities individuals of different ages that will appear on the
surface as mature individuals in different years. Thus in 1885 it was
understood that there were underground in Alabama two broods, viz.
brood xviii. that would appear on the surface in 1894, and brood iv.
that would appear on the surface in 1896. The predictions made as
to the years in which Cicadas would appear in some given locality
are considered to have proved correct. Moreover, particular
entomologists have in certain localities verified by personal
examination the appearance of the Insects for several consecutive
periods of seventeen years. These facts appear fairly conclusive, but
they are much complicated by another point, viz. that in certain
localities the period is one of thirteen, not of seventeen, years. This
is to some extent a question of climate, the thirteen-year interval
being chiefly characteristic of the Southern States. It is not, however,
entirely so, for there are localities in which the broods have an
interval of either thirteen years or seventeen years. Another fact
should be remembered, viz. that it is admitted that not quite all the
individuals of a particular brood are true to their proper time of
appearance; in other words, a few specimens may appear
precociously a year or two before their comrades, while some may
lag behind to a considerable extent. It is therefore a matter for great
surprise that, under these circumstances, the broods should keep
distinct at all, for one would suppose that time-variation of this kind
would lead to completely obscuring the distinctness of the broods.
We must also call attention to the fact that both the seventeen-year
and the thirteen-year broods have a dimorphic form, or sub-species,
called C. cassinii which accompanies the ordinary form, with which it
is apparently as a rule not connected by intermediates.[502]
Cicadidae are provided with powerful ovipositors. The eggs of C.
septendecim are deposited in the woody stems of bushes; after
remaining there a few weeks the young hatch out, drop to the
ground, and, as previously stated, disappear for nearly seventeen
years, nearly the whole of which time is passed in the larval state,
the nymph-condition existing for only a few days. They feed on the
roots of various trees; it has been said that they are injurious in this
way, but other authorities maintain that they suck only a moist
exudation from the roots. It is very difficult to obtain information as to
their strange, prolonged, subterranean life; it said that the Insects
sometimes penetrate to a great depth—ten feet, even twenty feet are
mentioned;—and as great changes may take place on the surface
during their long lives, these Insect Rip Van Winkles sometimes
emerge in very strange conditions, and may appear even in deep
cellars. When the pupa comes to the surface it hooks itself on to the
stem of some plant or other object, the skin of the back splits, and
the Cicada emerges. Among the inexplicable peculiarities of this
Insect must be mentioned the fact that when emerging it sometimes
constructs chimneys, or flues, extending several inches above the
surface of the ground. The reason for this is much disputed; it was
said that they are for refuge against inundations, but this appears to
be very doubtful. Certain of the broods consist of an almost
incalculable number of individuals, and it is very strange to hear
woods, or other localities, that have been for many years free from
these Insects, all at once resounding with their noisy song. The
seventeen-year Cicada is considered to be doomed to a speedy
extinction; the extension of cultivation and building, and the
introduction to America of the English sparrow, are likely to prove too
much for the Insect.

Although Hemiptera are classified by many among the Ametabola or

Insects without metamorphosis, it is impossible to deny that the
Cicadidae exhibit a considerable amount of metamorphosis, and
they are usually mentioned as exceptional. The young (Fig. 280, A)
is totally unlike the adult in form and colour, and maintains, to a
certain extent, its existence by the aid of a different set of
implements. The larva of the Cicada is colourless, with an
integument of very feeble consistence, rather large antennae, and a
remarkable pair of fossorial legs; the wings are totally wanting. The
mode of passage from the larval to the pupal state has not been
recorded. The pupa, or nymph, differs from the larva by its much
shorter, compressed form; by being encased in a remarkably hard
shell; and by the antennae approximating in form to those of the
adult. It has short wing-pads at the sides of the body; the front legs
are remarkably powerful, and the creature is capable of moving
about; the imago escapes from the pupa by the splitting dorsally of
the middle of the thoracic segments. The empty pupa-skin does not
shrivel, but retains its form, and in countries where Cicadas occur,
frequently attracts attention by the strange form it presents, being
often placed in a conspicuous position.

Song.—Cicadas are the most noisy of the Insect world; the shrilling
of grasshoppers and even of crickets being insignificant in
comparison with the voice of Cicada. Darwin heard them in South
America when the Beagle was anchored a quarter of a mile from the
shore; and Tympanoterpes gigas, from the same region, is said to
make a noise equal to the whistle of a locomotive.[503] A curious
difference of opinion prevails as to whether their song is agreeable
or not; in some countries they are kept in cages, while in others they
are considered a nuisance. The Greeks are said to have decided in
favour of their performances, the Latins against them. Only the
males sing, the females being completely dumb; this has given rise
to a saying by a Greek poet (so often repeated that it bids fair to
become immortal) "Happy the Cicadas' lives, for they all have
voiceless wives."[504] The writer considers the songs of the
European species he has heard far from unpleasant, but he is an
entomologist, and therefore favourably prepossessed; and he admits
that Riley's description of the performances of the seventeen-year
Cicada is far from a satisfactory testimonial to the good taste of that
Insect; Riley says, "The general noise, on approaching the infested
woods, is a combination of that of a distant threshing-machine and a
distant frog-pond. That which they make when disturbed, mimics a
nest of young snakes or young birds under similar circumstances—a
sort of scream. They can also produce a chirp somewhat like that of
a cricket and a very loud, shrill screech prolonged for fifteen or
twenty seconds, and gradually increasing in force and then
decreasing." The object, or use of the noise is very doubtful; it is said
that it attracts the females to the males. "De gustibus non est
disputandum!" perhaps, however, there may be some tender notes
that we fail to perceive; and it may be that the absence of any
definite organs of hearing reduces the result of a steam-engine
whistle to the equivalent of an agreeable whisper. No special
auditory organs have been detected[505] as we have already
intimated; and certain naturalists, amongst whom we may mention
Giard, think that the Insects do not hear in our sense of the word, but
feel rhythmical vibrations; it is also recorded that though very shy the
Insects may be induced to approach any one who will stand still and
clap his hands—in good measure—within the range of their
sensibilities. There is a good deal of support to the idea that the
males sing in rivalry.

Vocal structures.—Although we may not be able to pronounce a

final opinion as to the value to the Insect of the sounds, yet we
cannot withhold our admiration from the structures from which they
proceed. These are indeed so complex that they must be ranked as
amongst the most remarkable voice-organs in the animal kingdom.
They are totally different from the stridulating organs that are found
in many other Insects, and are indeed quite peculiar to the
Cicadidae. Some difference of opinion has existed as to the manner
in which the structures act, but the account given by Carlet, some of
whose figures we reproduce, will, we believe, be found to be
essentially correct. The structures are partly thoracic and partly
abdominal. On examining a male Cicada there will be seen on the
under surface two plates—the opercula—usually meeting in the
middle line of the body and overlapping the base of the abdomen to
a greater or less extent according to the species, sometimes nearly
covering this part of the body; these are enlargements of the
metathoracic epimera; they can be slightly moved away from the
abdomen, and, as the latter part is capable of a still greater extent of
movement, a wide fissure may be produced, displaying the complex
structures. In order to see the parts it is better to cut away an
operculum; underneath it three membranes can be seen, an
external, the timbal; an anterior, the folded or soft membrane; and a
posterior, the mirror. This last is a most beautiful object, tensely
stretched and pellucid, yet reflecting light so as to be of varied
colours; there are also three stigmata, and some chambers
connected with the apparatus. The sound is primarily produced by
the vibrations of the timbal, to which a muscle is attached; the other
membranes are probably also thrown into a condition of vibration,
and the whole skeleton of the Insect helps to increase or modify the
sound, which is probably also influenced by the position of the
opercula. The stigmata probably play an important part by regulating
the tension of the air in the chambers. In the female some of the
structures are present in a rudimentary form, but there are no
muscles, and this sex appears to be really quite voiceless.

Fig. 281.—Musical apparatus of Cicada plebeia. (After Carlet.) A,

Ventral view (Operculum on right side is removed); ap, apophysis;
C, cavern; c, trochantin (cheville of Réaumur); ent, part of internal
skeleton of abdomen; mi, specular membrane; m.pl, soft or folded
membrane; P, base of leg; st, st′, st″, stigmata; t, drum "timbale";
v, operculum; 1a, first, 2a, second abdominal segment: B, same
seen laterally, portion of abdominal wall as well as operculum
removed; A, point of insertion of hind wing; Mes, mesothorax; sc,
scutum of metathorax; 3a, third abdominal segment; rest as in A.

Fam. 2. Fulgoridae.—Ocelli two (rarely three, or entirely obsolete),

placed beneath the eyes or near the eyes, usually in cavities of the
cheeks, antennae placed beneath the eyes, very variable in form;
usually of two joints terminated by a very fine hair, the second joint
with a peculiar texture of the surface, owing to the existence of
sensitive structures (Hansen). Form of head very diverse; vertex and
face forming either a continuous curve, or the planes of the vertex
and face forming an acute angle, or both prolonged so as to form a
projection or growth that may be monstrous. Prothorax neither
armed nor unusually developed.

Fig. 282—Fulgora candelaria. × 1. China.

This family is of large extent, and includes at present so great a

variety of forms that it is really almost impossible to frame a definition
that will apply to all. The unusual situation of the ocelli and the
peculiar second joint of the antennae must at present be taken as
the best diagnostic characters: occasionally a third ocellus is
present. Some of the Fulgoridae are amongst the largest Insects,
others are quite small. The family includes the so-called Lantern-
flies, in which the front of the head forms a huge misshapen
proboscis that was formerly believed to be luminous. Many of the
species are of brilliant or beautiful coloration. A great many—and of
very different kinds—have the curious power of excreting large
quantities of a white, flocculent wax. This is exhibited by our little
British Insects of the genus Cixius, and in some of the exotic forms is
carried to an extent that becomes a biological puzzle. The Tropical
American genus Phenax may be cited as an example; being about
an inch long it flies about with a large mass of this waxy substance
twice as long as itself; indeed, in the Mexican P. auricoma, the waxy
processes are four or five inches long. This wax forms a favourite
food of certain kinds of Lepidoptera, and two or three larvae of a
maggot-like nature may frequently be found concealed in the wax of
the live Fulgorids; this has been recorded by Westwood as occurring
in India; and Champion has observed it in the New World.[506] The
wax of Fulgorids is used by the Chinese for candles and other
purposes; and this white Insect-wax is said to be much esteemed in
India. Very curious chemical substances have been obtained from it,
but its importance in the economy of the Insects that produce it is
quite obscure. We have about seventy species of Fulgoridae in
Britain. They belong to the subfamilies Tettigometrides, Issides,
Cixiides, and Delphacides, which by many authors are treated as
separate families. The exotic subfamily Flatides is highly peculiar. In
some of its members the head is very different from that of the
ordinary forms, being narrow, and the vertex and front forming a
continuous curve. Some of these Insects are remarkably like
butterflies or moths (e.g. the African Ityraea nigrocincta and the
species of the genus Pochazia), but the young are totally unlike the
old, the posterior part of the body bearing a large bush of curled,
waxy projections, several times the size of the rest of the body.

Fig. 283—A, B, Heteronotus trinodosus. A, Male seen from above; B,

profile of female; a, terminal part of pronotum; b, terminal part of
abdomen: C, front view of head and pronotum of Cyphonia
clavata. Both species from Central America. (From Biol. Centr.
Amer. Rhynch. Homopt. II.)

Fam. 3. Membracidae.—Prothorax prolonged backwards into a

hood or processes of diverse forms; antennae inserted in front of the
eyes; ocelli two, placed between the two eyes.—This family is of
large extent but its members are chiefly tropical, and are specially
abundant in America. Although not of large size the Membracidae
are unsurpassed for the variety and grotesqueness of their shapes,
due to the unusual development of the pronotum. We figure two of
these forms (Fig. 283).[507] Very little is known about their habits and
life-histories. We have only two species of the family in Britain, and
these do not afford any ground for supposing that there are any
peculiarities in their lives at all commensurate with the oddness of
the Insect's structures. Belt has recorded the fact that in Nicaragua
the larvae of certain Homoptera were assiduously attended by ants
for the sake of a sweet juice excreted by the bugs, but it is by no
means clear that these larvae were really those of Membracidae. In
North America Ceresa bubalus and C. taurina place their eggs in an
extremely neat manner in the woody twigs of trees. The young have
but little resemblance to the adults, the great thoracic hood being
absent, while on the back there is on each segment a pair of long,
sub-erect processes having fringed, or minutely spiny, margins.[508]

Fam. 4. Cercopidae.—Ocelli two (occasionally absent) placed on

the vertex; antennae placed between the eyes. Thorax not peculiarly
formed.—In the characteristic forms of this family the front of the
vertex bears a suture, touched on each side by one at right angles to
it, or converging to it so as to form a triangle or a sort of embrasure;
the hind tibiae have only one to three strong spines. The Cercopidae
are much less extraordinary than many of the previously considered
families. But some of them have the habit of secreting a large
quantity of fluid; and when in the immature stages, certain of them
have the art of emitting the liquid in the form of bubbles which
accumulate round the Insect and conceal it. These accumulations of
fluid are called cuckoo-spits or frog-spits; and the perfect Insects are
known as frog-hoppers, their power of leaping being very great. The
most abundant of the frog-hoppers in our gardens is Philaenus
spumarius, a little Insect of about a quarter of an inch long, obscurely
coloured, with more or less definite pale spots; it is so variable in
colour that it has received scores of names. Some of the Insects do
not use their fluid in this manner, but eject it in the form of drops, and
sometimes cast them to a considerable distance. The phenomena
known as weeping-trees are due to Cercopidae; some of the species
make such copious exudations of this kind that the drops have been
compared to a shower of rain. In Madagascar it is said that Ptyelus
goudoti exudes so much fluid that five or six dozen larvae would
about fill a quart vessel in an hour and a half. The frog-spit is
considered by some naturalists to be a protective device; the larvae
are, however, a favourite food with certain Hymenoptera, which pick
out the larvae from the spits and carry them off to be used as stores
of provision for their larvae. In Ceylon the larva of Machaerota
guttigera constructs tubes fixed to the twigs of the tulip-tree, and
from the tube water is exuded drop by drop. According to Westwood,
this Insect is intermediate between Cercopidae and Membracidae.
[509]

Fam. 5. Jassidae.—Ocelli two, placed just on the front margin of the

head (almost in a line with the front of the eyes or more to the front)
or on the deflexed frons. Hind tibiae usually with many spines. This
vaguely limited family includes a very large number of small or
minute Insects, usually of narrow, parallel form, and frequently
excessively delicate and fragile. They are often mentioned under the
name of Cicadellinae. Ashmead distinguishes two families,
Bythoscopidae, in which the ocelli are clearly on the frons or front,
and Jassidae, in which they are on the upper edge thereof. Ulopa,
Ledra, and a few other exceptional forms, are also by many
distinguished as representatives of distinct families. Very little is
actually known as to the life-histories of these small and fragile
Insects, but it is believed that the eggs are usually deposited in the
leaves or stems of plants, and more particularly of grasses. In North
America the development of Deltocephalus inimicus, from hatching
to assumption of the adult form, has been observed by Webster to
occupy about six weeks. As Jassidae are numerous both in species
and individuals it is believed that they consume a considerable part
of the vegetation of pastures. Osborn has calculated that on an acre
of pasture there exist, as a rule, about one million of these hoppers,
and he considers they obtain quite as large a share of the food as
the Vertebrates feeding with them.

Fam. 6. Psyllidae.—Minute Insects with wings usually transparent,

placed in a roof-like manner over the body; with three ocelli, and
rather long, thin antennae of eight to ten joints. Tarsi two-jointed.—
These small Insects have been studied chiefly in Europe and North
America, very little information having yet been obtained as to the
exotic forms. They are about the size of Aphidae, but in form and
general appearance remind one rather of Cicadidae. The wings are
in many cases even more perfectly transparent than they are in
many Cicadidae. They are sometimes called springing plant-lice, as
their habit of jumping distinguishes them from the Aphidae. Löw has
called attention to the remarkable variation in colour they present in
conformity with either the age of the individual, the food-plant, the
climate, and, more particularly, the season of the year.[510] Réaumur
long since pointed out that at their ecdyses these Insects go through
a remarkable series of changes of colour, and Löw found that this did
not take place in the normal manner in the winter generation that
hibernates. This has been confirmed by Slingerland in North America
in the case of Psylla pyricola,[511] which has been introduced there.
He finds that there are several generations in the year, and that the
hibernating adults differ from the summer adults in size, being nearly
one-third larger; in their much darker colouring; and especially in the
coloration of the front wings.

Fig. 284—Psylla succincta. x 15. Europe. (After Heeger.) A, larva

before first moult. B, larva after third moult. C, adult.

In the earlier stages, Psyllidae differ greatly in appearance from the

adult forms; the legs and antennae in the newly hatched larvae are
short, and have a less number of joints. In the nymph the shape is
very peculiar, the large wing-pads standing out horizontally from the
sides of the body, so that the width of the creature is about as great
as the length. The period occupied by the development apparently
varies according to season. Witlaczil, who has given an account of
many details of the anatomy and histology of various Psyllidae,[512]
considers that there are four larval stages; Heeger's account of
Psylla succincta is not quite clear on this point, and Slingerland
indicates a stage more than this, the perfect Insect being disclosed
as the result of a fifth moult; it is probable that he is correct. In these
earlier stages the body bears long hairs called wax-hairs; according
to Witlaczil in the young larvae of certain species—Trioza rhamni,
e.g.—these are broad and flat, so as to make the body appear
studded with oval processes; he states that these hairs change their
form during the growth of the individual. Nothing is more remarkable
in Psyllidae than the amount of matter they secrete or exude from
their bodies; in some species the substance is a "honey-dew," and
the nymph may keep itself covered with a drop of it: in other cases it
is solid, as shown in Réaumur's figures of P. buxi, where this
exudation forms a string several times longer than the body, and
attached to it. Another form of exudation is a light downy or waxy
matter. Slingerland says that honey-dew was exuded by P. pyricola
in such quantities that it "literally rained from the trees upon the
vegetation beneath; in cultivating the orchard the back of the horse
and the harness often became covered with the sticky substance
dropping from the trees. It attracts thousands of ants, bees, and
wasps, which feed upon it." The writer last year observed in the New
Forest a stunted sloe-bush, about which a large number of Bombi
were busily occupied; and examination showed that they were
thrusting their proboscides into the curled and deformed leaves, in
which were secreted nymphs of a Psylla exuding honey-dew. It must
not be assumed that this honey-dew is the excrement of the Insect;
this also is known, and is a different substance. Those who have
tasted it say that the honey-dew has a clean, good flavour. The
source of the honey-dew is not quite certain, but it seems probable
that it comes, like the solid matter figured by Réaumur, directly from
the alimentary canal, and not from hairs or pores on the body.
Psyllidae give rise to definite formations or galls on certain plants;
sometimes these Psyllid galls are mere changes in form of a limited
part, or parts, of a leaf, giving rise either to crumpling or to growth of
a portion in one direction only, so that on one surface of the leaf a
swelling is formed, and on the opposite side a more or less deep
cavity in which the Insect dwells. A formation of this kind on the
leaves of Aegopodium podagraria is described by Thomas[513] who
states that the growth is due to the deposition of an egg of the
Psylla, and is independent of the after life of the Insect; a fungus—
Puccinia aegopodii—forms similar structures on the leaves.
Structures much more definite than this may be the result of the
attacks of Psyllidae; for an example the reader may refer to
Réaumur's account of Psylla buxi.[514] In Australia and Tasmania
there are Psyllidae known as Laap or Lerp Insects, the products of
which are called leaf-manna or Lerp, and are used as food. This
manna is a scale produced by the young Insect on the leaves of
Eucalyptus as a covering or protection. The scale is fastened to the
leaf by a hinge, and is somewhat like the shell of a cockle. Although
the scales are said to be in some cases objects of great beauty, very
little is known about these Australian Psyllidae, one of which has,
however, been referred by Schwarz to the genus Spondyliaspis,
Signoret.[515] About 160 species of Psyllidae are known to occur in
the Palaearctic region, and about fifty of them have been found in
Britain.[516]

Fam. 7. Aphidae (Plant-lice or Green-fly.)—Minute Insects; as

usually met with destitute of wings, though many individuals have
two pairs of transparent wings. Antennae long, or moderately long,
three- to seven-jointed; abdomen frequently with a pair of tubes
(siphons), or short processes on the upper side of the fifth abdominal
segment. Tarsi two-jointed, first joint sometimes excessively short.—
These soft-skinned Insects are frequently called blight, and are so
abundant in temperate climates that a garden, however small, is
sure to afford abundance of specimens during the warm months of
the year. This great abundance is due to peculiarities in the
physiological processes that render these obscure little animals
highly important creatures; the individual life for several generations
is restricted to constant, or at any rate copious, imbibition of food,
accompanied by an almost uninterrupted production of young by
parthenogenetic females, the young so produced becoming rapidly
(sometimes in the course of eight or ten days, but more usually in
about twenty days) themselves devoted to a similar process; so that
in the comparatively short period of a few months the progeny
resulting from a single individual is almost innumerable. This
remarkable state of affairs is accompanied by other peculiarities of
physiology, with the result that the life-histories of successive
generations become very diverse, and complex cycles of series of
generations differing more or less from one another are passed
through, the species finally returning to bi-sexual reproduction, and
thus inaugurating another cycle of generations. The surprising nature
of these facts has in the last 150 years caused an immense amount
of discussion, but no satisfactory light has yet been thrown on the
conditions that really give rise to the exceptional phenomena. These
phenomena are (1) parthenogenesis; (2) oviparous and viviparous
reproduction; (3) the production of generations of individuals in which
the sexes are very unequally represented, males being frequently
entirely absent; (4) the production of individuals differing as to the
acquirement of wings, some remaining entirely apterous, while
others go on to the winged form; (5) the production of individuals of
the same sex with different sexual organs, and distinctions in the
very early (but not the earliest) stages of the formation of the
individual; (6) differences in the life-habits of successive generations;
(7) differences in the habits of individuals of one generation, giving
rise to the phenomenon of parallel series. All these phenomena may
occur in the case of a single species, though in a very variable
extent.

The simple form of Aphid life may be described as follows:—eggs

are laid in the autumn, and hatch in the spring, giving rise to females
of an imperfect character having no wings; these produce living
young parthenogenetically, and this process may be repeated for a
few or for many generations, and there may be in these generations
a greater or less number of winged individuals, and perhaps a few
males.[517] After a time when temperature falls, or when the supply
of food is less in quantity, or after a period of deliberate abstention
from food, sexual individuals are produced and fertilised eggs are
laid which hatch in the spring, and the phenomena are repeated. In
other cases these phenomena are added to or rendered more
complicated by the intercalated parthenogenetic generations
exhibiting well-marked metamorphosis, of kinds such as occur in
apterous or in winged Insects; while again the habits of successive
generations may differ greatly, the individuals of some generations
dwelling in galls, while those of other generations live underground
on roots.

Parthenogenesis.—Returning to the various kinds of peculiarities

we have enumerated on the preceding page, we may remark that
the phenomena of parthenogenesis have been thoroughly
established as occurring in Aphidae since Bonnet discovered the fact
150 years ago; and though they have not been investigated in much
detail it is known that the parthenogenesis is usually accompanied
by the production of young all of the female sex. In other cases
males are parthenogenetically produced; but whether these males
come from a female that produces only that sex is not yet, so far as
the writer knows, established. A note by Lichtenstein[518] suggests
that usually only one sex is produced by a parthenogenetic female,
but that both sexes are sometimes so produced. There is not at
present any species of Aphid known to be perpetuated by an
uninterrupted series of parthenogenetic generations. It was formerly
supposed that there are no males at all in Chermes, but, as we shall
subsequently show, this was erroneous. It has, however, been
observed that a series of such generations may be continued without
interruption for a period of four years, and we have no reason to
suppose that even this could not be much exceeded under
favourable conditions. The parthenogenetic young may be produced
either viviparously or oviparously, according to species.

Oviparous and viviparous reproduction.—The distinction between

these two processes has been extensively discussed, some
naturalists maintaining that they are thoroughly distinct ab initio. This
view, however, cannot be sustained. The best authorities are agreed
that in the earliest processes of individualisation the ovum, and the
pseudovum[519] giving rise to a viviparous individual, are
indistinguishable. Leydig, Huxley, Balbiani, and Lemoine are agreed
as to this. Nevertheless, differences in the development occur
extremely early. The nature of these differences may be briefly
described by saying that in the viviparous forms the embryonic
development sets in before the formation of the egg is properly
completed. Balbiani says, "In fact at this moment [when the
viviparous development is commencing] the germ [pseudovum] is far
from having obtained the development it is capable of, and from
having accumulated all the matter necessary for the increase of the
embryo, so that the evolution of the former coincides, so to speak,
with that of the latter. On the other hand, in the true ovum the two
processes are chronologically separate, for the rudiment of the new
individual never appears before the egg has completed the growth of
its constituent parts."[520] As regards the difference in structure of
the organs of viviparously and oviparously producing individuals, it is
sufficient to remark that they are not of great importance, being
apparently confined to certain parts remaining rudimentary in the
former. Leydig, indeed, found an Aphis in which certain of the egg-
tubes contained eggs in various stages of development, and others
embryos in all stages.[521]

As regards the physiology of production of winged and wingless

individuals there has been but little exact inquiry. Vast numbers of
individuals may be produced without any winged forms occurring,
while on the other hand these latter are occasionally so abundant as
to float about in swarms that darken the air; the two forms are
probably, however, determined by the supply of food. The winged
forms are less prolific than the apterous forms; and Forbes has
noticed in Aphis maidi-radicis, where the generations consist partly
of apterous and partly of winged individuals, that when the corn
begins to flag in consequence of the attacks of the Aphis, then the
proportion of winged individuals becomes large.[522] The
appearance of winged individuals is frequently accompanied by a
peculiar change of habit; the winged individuals migrating to another
plant, which in many cases is of a totally different botanical nature
from that on which the apterous broods were reared: for instance
Aphis mali, after producing several apterous generations on apple,
gives rise to winged individuals that migrate to the stems of corn or
grass, and feeding thereon commence another cycle of generations.
The study of this sort of Aphis-migration is chiefly modern, but many
very curious facts have already been brought to light; thus
Drepanosiphum platanoides, after producing a certain number of
viviparous generations on maple (Acer), quits this food-plant for
another, but after two or three months returns again to the maple,
and produces sexual young that lay eggs.[523] Histories such as this
are rather common. Even more interesting are the cases of those
species that, after some weeks of physiological activity on a plant,
pass into a state of repose on the same plant, and then after some
weeks produce sexual young. On the whole, it would appear that the
appearance of winged forms is a concomitant of decreasing nutrition.
It is a very remarkable fact that the sexually perfect females are
invariably apterous, and this is frequently also the case with the
males. It is also highly remarkable that the sexually perfect
individuals are of comparatively small size. There are at least three
kinds of males in Aphidae—1, winged males; 2, wingless males with
mouth well developed; 3, wingless small males with mouth absent.
As regards some of these points the conditions usual in Insect life
are reversed.[524] Huxley inclined to treat all these products of a
fertilised egg, that are antecedent to another process of
gamogenesis (i.e. production with fertilisation), as one zoological
individual: in that case the Aphis zoological individual is winged
before attaining the mature state, and is wingless and smaller when
mature. Some species may have as a rule two, others three, winged
generations in a year.

Fig. 285—Chermes abietis; hibernating female or "winter-mother."

Europe. Much magnified. (After Cholodkovsky.)
Parallel series.—In certain cases individuals of one generation
assume different habits, and so set up the phenomenon known as
parallel series. This has been recently investigated in the genus
Chermes by Blochmann, Dreyfus, and Cholodkovsky. This latter
savant informs us[525] that a wingless parthenogenetic female of
Chermes hibernates on a fir-tree—Picea excelsa—and in the spring
lays numerous eggs; these hatch, and by the effects of suction of the
Chermes on the young shoots, galls are formed (Fig. 286), in which
the Insects are found in large numbers; when they have grown the
galls open, and allowing the Insects to escape these moult and
become winged females. They now take on different habits; some of
them remain on the Picea, lay their eggs thereon, and out of these
there are produced young that grow into hibernating females, which
next spring produce galls as their grandmothers did; but another
portion migrates to the Larch (Larix); here eggs are laid, from which
proceed wingless parthenogenetic females, that hibernate on their
new or secondary plant, and in the following spring lay their eggs
and give rise to a dimorphic generation, part of them becoming
nymphs and going on to the winged condition, while the other part
remain wingless and lay eggs, that give rise to yet another wingless
generation; in fact, a second pair of parallel series is formed on the
new plant, of which one is wingless, and exclusively
parthenogenetic, and continues to live in this fashion for an indefinite
period on the secondary plant, while the other part becomes winged;
these latter are called sexuparous, and go back to the Picea, and
there lay eggs, that give rise to the sexual forms. If we would
summarise these facts with a view to remembering them, we may
say that a migration of a part of a generation from the Picea was
made with a view of producing a sexual generation, but that only a
portion of the migrants succeeded in effecting the object of the
migration, and this only in their third generation. Thus portions
remained on the Picea, producing unisexual (female) individuals,
and a portion of those that emigrated to the Larix remained thereon,
producing also unisexual (female) individuals, while the others
returned to the Picea and produced a sexual generation. How long
the production of the unisexual generations may continue has not
been determined.