Mon June 13, 2011
Skip The Legalese And Keep It Short, Justices Say
Most of the U.S. Supreme Court's work is in writing. The words on the page become the law of the land, but the justices have no uniform approach to the way they do that job. Indeed, each seems to have his or her own inspiration or pet peeve.
Much of this is laid out is a series of interviews conducted with the justices in 2007 and consigned to obscurity on a little-known website. Now those interviews have been published in the Scribes Journal of Legal Writing, and they show some of the justices in an unusually revealing light.
A Disdain For 'Legalese'
Justice Clarence Thomas characterizes writing his own memoir this way: "like a death wish." And Justice Stephen Breyer concedes that the first chapter of his book, Active Liberty, is so dense that he often advises non-lawyers to "skip it" and read the rest.
All of the justices talk about "legalese" in disparaging terms, and many refer to great fiction writers as masters of language.
"The only good way to learn about writing is to read good writing," says Chief Justice John Roberts.
That sentiment is echoed by Breyer, who points to Proust, Stendhal and Montesquieu as his inspirations. Justice Anthony Kennedy loves Hemingway, Shakespeare, Solzhenitsyn, Dickens and Trollope.
Justice Thomas says a good legal brief reminds him of the TV show 24. Justice Ruth Bader Ginsburg says one of the great influences on her writing was her European literature professor at Cornell, Vladimir Nabokov — yes, the same Nabokov who later rocked the literary world with his widely acclaimed novel Lolita.
"He was a man in love with the sound of words," said Ginsburg. "He changed the way I read, the way I write."
Many of the justices admit to linguistic pet peeves. Kennedy hates adverbs and disdains nouns that are converted to verbs — "incentivize," for example. Scalia readily admits to being a snoot.
"Snoots are those who are nitpickers for the mot juste, for using a word precisely the way it should be used, not dulling it by misuse," said Scalia, adding, "I'm a snoot."
That contrasts with Thomas, who, when asked by interviewer Bryan Garner whether he would describe himself as a word lover, replied: "Not particularly ... I like buses and football and cars."
Thomas noted that he was raised speaking a dialect called Geechee and wasn't comfortable speaking standard English until he was in his 20s.
The Oral Argument
The justices each approach their work at the court quite differently. Thomas hasn't asked a question at oral argument in more than five years. He doesn't like the fast pace of questions to counsel, viewing it as "unnecessarily intense."
"I don't like the back and forth, and I've been very clear about that, and I won't participate," he said.
Thomas said that when he was a lawyer, most of the appellate arguments he made in court were without interruption, and he liked it that way.
But Scalia loves the combat of questioning, and did as a lawyer, too. In an appearance before the Supreme Court as a Justice Department lawyer, he recalled unhappily, he got only two questions.
"It was awful. I'm like, c'mon you guys, give me a hand here," he said. A good lawyer "welcomes questions."
Indeed, while some justices — Samuel Alito and Thomas — have said they view oral argument as relatively unimportant, others — Kennedy and Breyer — would like more time to hear the oral presentations and ask questions.
Kennedy so loves the give and take of oral argument that at one law school moot court where he served as a judge, he actually got down off the bench, gave the student advocate his robe, and put on the student's suit jacket.
"I put him up on the bench, and I said, 'Now here's how you should answer the question.' I just couldn't stand it any longer," said Kennedy. "Many judges who have been trial lawyers feel that way; we wish we were down there."
But Chief Justice Roberts, who for years was among the finest Supreme Court advocates, conceded that asking questions as a justice is a lot "less nerve-racking" than answering questions as a lawyer. "Stupid questions," from a justice, he observed, are "a lot less harmful than giving stupid answers."
Rewriting, Editing And Refining
As to actually writing court opinions, each justice seems to approach the task a bit differently.
All talk about the need for clarity, for simplicity of language where possible, so that the lower courts will have clear guidelines to follow. In addition, they all see the need to explain to the public at large what a case is about and why it is important.
Some justices, like Ginsburg or the retired Justice John Paul Stevens, find it easier to write a first draft and then let their law clerks have a go at it. Others, like Scalia, let the law clerks write the first draft, and then the justice rewrites, edits and refines.
Thomas says he never even sees a draft until it has been through three aggressive rewrites by his law clerks.
Chief Justice Roberts relates a telling story from his 1981 clerkship for then-Justice William Rehnquist. Upon reviewing Roberts' draft, Rehnquist circled vast amounts of the Roberts effort and instructed him to put that material in the footnotes.
"So I went back and gave him a draft with all that stuff in footnotes," whereupon Rehnquist "looked at it and said, 'Fine, now cut out all the footnotes.' "
Message to the then-law clerk and future chief justice: It can always be shorter.