After judge takes umbrage at dissenter’s ‘sound and fury’ quote, 5th Circuit grants en banc rehearing

JAN 31, 2021 | REPUBLISHED BY LIT: FEB 2, 2021

The 5th U.S. Circuit Court of Appeals at New Orleans has granted an en banc rehearing in a case in which the judge who wrote the majority opinion took umbrage at a dissenter’s quotation from Macbeth, King of Scotland.

Judge James Ho, an appointee of former President Donald Trump, wrote in a concurrence to his own majority opinion that the dissenter used a “sound and fury” quotation about idiots, despite claiming to issue the opinion in “due respect.”

Ho offered his own quotation—from Ricky Bobby of the 2006 movie Talladega Nights: The Ballad of Ricky Bobby.

The dispute in Hewitt v. Helix Energy Solutions Group Inc. concerns whether an oil rig manager who earned more than $200,000 per year is a salaried employee not entitled to overtime pay. The majority ruled that employee Michael Hewitt, whose pay was computed on a daily basis, was entitled to overtime under Labor Department regulations interpreting the Fair Labor Standards Act.

The dissenter was Judge Jacques L. Wiener Jr., an appointee of former President George H.W. Bush.

“With due respect for my esteemed colleagues in the majority, who in good faith attempt to apply the regulatory text as written, I am compelled to dissent,” he wrote at the beginning of his opinion.

Wiener ended his dissent this way: “Finally, with utmost respect for my friend and colleague who authored the special concurrence, my only response is to quote Macbeth: ‘full of sound and fury, signifying nothing.’ ”

In a footnote, Wiener wrote, “To be sure, the harshness of the full quotation is unwarranted, and, thus, I only quote what is appropriate.”

The full quotation reads:

“It is a tale. Told by an idiot, full of sound and fury, signifying nothing.”

Ho began his special concurrence this way:

“The dissent begins by expressing ‘due respect’ to the majority—and then ends with a well-known literary quote about idiots. … It concludes that my opinion in this case is worth ‘nothing.’ …

To some, statements like these may be reminiscent of the wisdom of Ricky Bobby. See Talladega Nights: The Ballad of Ricky Bobby (2006) (‘What? I said “with all due respect!” ‘). To others, it may call to mind a recent observation by one of our respected colleagues: ‘More often than not, any writing’s persuasive value is inversely proportional to its use of hyperbole and invective.’ …

“As the adage goes, the loudest voice in the room is usually the weakest.”