Legal Writing in the U.S. Supreme Court’s End-of-Term Decisions
by Ken Bresler
A version of this article appeared in
Massachusetts Lawyers Weekly, August 24, 2015
“[I]nterpretive jiggery-pokery” got the most attention. That’s a barb, meaning trickery, from Justice Antonin Scalia’s dissent to and characterization of the Supreme Court’s recent Obamacare case, King v. Burwell. “Pure applesauce” probably got the second most attention. That’s from the same dissent. The context indicates that Scalia used “applesauce” as a synonym for hogwash – or an expletive evoking the barnyard.
But let’s look at other language in the opinions that closed the 2014 U.S. Supreme Court term, language (much of it penned by Justice Scalia) that deserves our attention now that we have weighed the substance of the opinions, which is more important than the writing.
Justice Clarence Thomas made a passing joke in a Takings Clause case involving an agricultural order that took away 47% of California raisin growers’ crop one year. “[H]aving the Court of Appeals calculate ‘just compensation’ in this case would be a fruitless exercise,” he wrote in his concurrence to Horne v. Department of Agriculture.
Justice Scalia continued to write opinions with bullet points, most recently in Michigan v. Environmental Protection Agency, in effect giving permission to less lofty lawyers to employ this useful technique in formal legal writing.
The justices continued to add a less formal tone here and there. “Maybe, maybe not,” wrote Justice Sonia Sotomayor, dissenting in the raisin Takings Clause case. “Quite the contrary,” she wrote in her dissent to Glossip v. Gross. “Unquestionably,” wrote Justice Scalia in his dissent to an excessive force case, Kingsley v. Hendrickson. “True enough,” wrote Chief Justice John Roberts in the Obamacare case.
“Which is one good reason why that is not our job.” That’s how Justice Elena Kagan began a paragraph, not just a sentence in a patent royalties case.
Using punchy incomplete sentences was just one way that the justices were conversational. Chief Justice Roberts used, paradoxically, a run-on sentence to admirably explain a chain of reasoning. According to the petitioners in the Obamacare case, an applicable taxpayer in a state with a federal health insurance exchange “would be eligible for a tax credit – but the amount of that tax credit would always be zero. And that is because – diving several layers down into the Tax Code – Section 36B says that the amount of the tax credits shall be ‘an amount equal to the premium assistance credit amount,’ §36B(a); and then says that the term ‘premium assistance credit amount’ means ‘the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year,’ §36B(b)(1); and then says that the term ‘premium assistance amount’ is tied to the amount of the monthly premium for insurance purchased on ‘an Exchange established by the State under [42 U. S. C. §18031],’ §36B(b)(2); and then says that the term ‘coverage month’ means any month in which the taxpayer has insurance through ‘an Exchange established by the State under [42 U. S. C. §18031],’ §36B(c)(2)(A)(i).”
That’s a 137-word sentence. Most sentences bog down after 20 words. This one didn’t. But Chief Justice Roberts is no ordinary writer.
Neither is Justice Kagan. Watch her effectively use the second person and rhetorical questions in the EPA case. There, the Court found that the EPA refused to consider cost when it found a regulation appropriate and necessary. Kagan’s dissent included this argument: “Suppose you were in charge of designing a regulatory process. The subject matter – an industry’s emissions of hazardous material – was highly complex, involving multivarious factors demanding years of study. Would you necessarily try to do everything at once? Or might you try to break down this lengthy and complicated process into discrete stages? And might you consider different factors, in different ways, at each of those junctures? I think you might. You know that everything must get done in the end – every relevant factor considered. But you tend to think that ‘in the end’ does not mean ‘in the beginning.’ And you structure your rulemaking process accordingly, starting with a threshold determination that does not mirror your end-stage analysis. Would that be at least (which is all it must be) a ‘reasonable policy choice’? [Citation omitted.] That is the question presented here, and it nearly answers itself.”
Indeed it does. Justice Kagan seemed as if she were trying to engage, converse with, and persuade us, the readers, and not only her colleagues. Perhaps she had given up on her colleagues and was conversing only with us.
Conversational is one thing; overly casual is another matter. An end-of-term decision in a patent royalties case happened to involve a Spider-Man toy. It could easily have involved another item, but because it involved Spider-Man, Kimble v. Marvel Entertainment led to some language out of – and a citation to – comic books. “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can),” wrote Justice Kagan for the Court. She explained patent rights this way: “Patents endow their holders with certain superpowers, but only for a limited time.” She described the leading precedent as “this superpowered form of stare decisis.” Disagreeing with that point, Justice Samuel Alito, wrote in dissent that “we do not give super-duper protection to decisions that do not actually interpret a statute.”
In the last substantive paragraph of the majority opinion, Justice Kagan wrote in part: “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘Spider-Man,’ p. 13 (1962) (‘[I]n this world, with great power there must also come—great responsibility’).” I admire her use of “undecide” as a verb, but I’m dubious about her jiggery-jokery in citing Spider-Man as an authority.
Justice Scalia, too, may have crossed the line into overly casual, in his opinion in the same-sex marriage case: “Huh?” “What say?” and “[N]ever mind,” he wrote in his dissent to Obergefell v. Hodges. He criticized “[t]he stuff contained in today’s opinion.” Stuff? “My goodness,” he wrote in his concurrence to Glossip v. Gross.
Some of Justice Scalia’s recent writing was both overly casual and barbed. “Welcome to Groundhog Day,” he wrote in his concurrence to Glossip, the Eighth Amendment case about lethal injections. The concurrence was largely an attack on the dissent by Justice Stephen Breyer. Scalia called the dissent “gobbled-gook” and called Breyer “the Drum Major in this parade” to abolish the death penalty.
Some of Justice Scalia’s language passed from colorful and barbed into colorful and sarcastic. Some passed from sarcastic into caustic. He accused the dissenters of having “a let-them-eat-cake obliviousness to the needs of others,” called an issue “a question far above the judiciary’s pay grade,” and characterized the dissenters’ citation of studies “as though they have discovered the lost folios of Shakespeare.”
He continued: “Do not use the creative arithmetic that Justice Breyer employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.” He ended his concurrence in Glossip with: “…Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”
My goodness.
In his dissent to the same-sex marriage case, Scalia called the majority opinion a “judicial Putsch.” He attacked its writing as “mummeries and straining-to-be-memorable passages,” “silly extravagances,” “showy profundities,” and “the mystical aphorisms of the fortune cookie.” (Mummeries, by the way, are pretentious or hypocritical shows or ceremonies.)
Just who is straining to be memorable (or mummerable)? And the hyphenated adjectival phrase “straining-to-be-memorable” constitutes strained writing. So does the phrase “a let-them-eat-cake obliviousness.”
Toward the end of his dissent, Justice Scalia wrote, “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.” And the world does not expect civility, collegiality, and eloquent understatement on TV “talk” shows and in political campaigns. But it does expect them from Supreme Court justices.