Recent columns have discussed recent United States Supreme Court opinions. To mix things up a bit, let’s look at a golden oldie: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Ronald Reagan was about half way through his second term when I first read Marbury v. Madison. I dutifully studied the opinion for a constitutional law exam. Landmark decision. Established the legitimacy of judicial review. Constitution trumps incompatible legislation. I then filed it in my memory under the heading, “What the law is; emphatically the province and duty of the judicial department to say.”
I picked up Marbury v. Madison again in 2011 to focus less on what it says and more on how it reads. A few things about the opinion stand out after a fresh look.
First, it was a mandamus. Marbury was the relator. He lost. Some things haven’t changed.
Second, it provides a good example of what now might be called “roadmapping.” At multiple points in the opinion, Chief Justice Marshall clearly identifies each issue that must be answered in a logical progression to reach a decision. Does Marbury have a right to the commission he demands? Does he have a remedy? Is that remedy a writ of mandamus from the Supreme Court? Then the opinion methodically analyzes each question. It was a good approach to opinion writing in 1803, and it is a good approach today.
Third, it contains many beautiful turns of phrase. Some are archaic, some are lyrical.
- “The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is founded.” Id. at 154.
- “After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine.” Id. at 159.
- “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id. at 163.
- “[I]t is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice; to which claims it is the duty of the court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.” Id. at 170.
- “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest.” Id. at 177.
Think of it as free verse poetry, legal style.
Consider how these phrases might spice up a contemporary Texas appellate opinion. “It is not wonderful that there was admitted into evidence testimony repugnant to the intricacy and peculiar delicacy of the hearsay rule. An anxious search of the record confirms that the testimony is cumulative, and the act does not deserve the high appellation of ‘reversible error.’ Therefore, we need not intermeddle with the prerogatives of the district judge.”
Some of Marbury v. Madison’s 19th century language readily translates to the 21st century reader, and some does not. The commas and semicolons flowed a little more freely from the quill in 1803.
But here’s the key point. Chief Justice Marshall did not encrust his opinion with mind-numbing legal jargon and Latin phrases. The opinion is written in more-or-less plain English, albeit plain English from a more formal and more wordy era. The opinion contains numerous short paragraphs, many of which are only one sentence long. The sentences themselves are an attention-keeping mixture of short, punchy declarations interspersed with longer, complex thoughts linked by commas or semicolons. The reader is given clear directions about where the opinion is going; how it will get there; and where it has arrived. Sounds a bit like some seminar advice I’ve heard.
If you seek an opinion emphatically deserving the high appellation of “modern legal writing,” then dig out your casebook and re-read Marbury v. Madison. You will discover a decision that is deeply interesting, but happily, not of an intricacy proportioned to its importance.
Have your own rewrite worthy suggestion? Send it to: submissions@hbaappellatelawyer.org