LawProse Lesson #243: Just deserts.
Why did Justice Brennan mistakenly write “just desserts”? No one knows. It’s the only misspelling of the phrase just deserts (= what one rightly deserves) in the annals of Supreme Court opinions. Twenty-one times, in fact, the Supreme Court has used the correct phrase, just deserts. But in 1989, Justice Brennan used the demotic misspelling in a concurring opinion. He said: “Since mentally retarded offenders as a class lack the culpability that is a prerequisite to the proportionate imposition of the death penalty, it follows that execution can never be the ‘just desserts’ of a retarded offender and that the punishment does not serve the retributive goal.” [Penry v. Lynaugh, 492 U.S. 302, 348 (1989) (Brennan, J., concurring) (quotation marks in original; internal citations omitted)]. Perhaps this is proof of how little attention is paid to concurrences. In book sources, just deserts preponderates over *just desserts (the asterisk denotes a misuse) by a 3-to-1 ratio. Take away stale puns in cookbooks and the spread would probably be higher. In traditional usage, just deserts is typically something bad: from a slap in the face to 30 years at hard labor—or even execution. In the days when public hangings were common on town squares, observers would frequently comment coldly, “He got his just deserts.” The idea that the phrase relates to a child’s earning a sweet treat by eating greens is a latter-day blunder—one that seems to have misled even the redoubtable Justice William Brennan.