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This is the inaugural submission for a regular column with the audacious purpose of rewriting United States Supreme Court opinions. Not whole opinions, just portions of them.
Put aside for a moment the understandable concern about hubris, delusions of grandeur, and compulsive behavior. There is a purpose to this exercise, and it goes beyond the mere thrill (such as it is) of purporting to edit Justice Scalia’s work product.
The purpose here is to use Supreme Court opinions as a vehicle for exploring the choices that underlie legal writing. Opinions, like briefs, are a species of legal writing. Opinions, like briefs, use legal writing to communicate information on multiple levels simultaneously.
Some of those levels are direct and closely linked to specific word choices. Consider the emphatic terms “affirmed” and “reversed.” Or the still-pretty-emphatic-but-need-to-keep-reading impact of the phrase “affirmed in part and reversed in part.”
Other levels are more subtle. An opinion can communicate information by what it says, and by what it does not say. It can frame a holding broadly in terms of what a governing legal precept requires the actor to do, or more narrowly in terms of what the actor cannot do. It can say what the limit is, or only that this is just too much. Supple words like “reasonable” may burrow into an otherwise stout-sounding standard, making it more easily adaptable to the particular circumstances of future litigants.
Enough with the abstract musings. To kick things off, let’s look at a sentence from Justice Kennedy’s majority opinion in Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009).
Much of the attention garnered by Caperton has focused on the sentences announcing a new recusal standard. Under this standard, an appellate judge violated the Fourteenth Amendment’s Due Process Clause when he denied a recusal motion prompted by campaign spending in support of the judge’s election to the Supreme Court of Appeals of West Virginia.
The Caperton sentence I have in mind is much less sexy. But it illustrates the effective use of lists.
In the course of discussing considerations that go into deciding recusal motions, Justice Kennedy wrote this sentence: “Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work.” Id. at 2263 (emphasis added).
The first time I read this sentence, I thought to myself: If my daughter wrote this sentence, I would circle all the “ands” and tell her to start over. Then I read it again. And again.
If only efficiency mattered, I would rewrite Justice Kennedy’s sentence like this: “Judges who decide recusal motions must consider these factors, among others: (1) precedent; (2) stare decisis; (3) the Constitution’s text; (4) the law’s purpose; (5) logic; (6) scholarship; (7) experience; (8) common sense; (9) fairness; (10) disinterest; and (11) neutrality.” It frequently is tempting to use this format in opinion writing. At the price of boredom, this format quickly conveys a lot of information in a small space.
But efficiency is not the only thing that matters in Justice Kennedy’s sentence. His sentence’s lyrical flow and its heavy use of “ands” convey a clear message: Recusal implicates many overlapping considerations, and the standard cannot be reduced in cookbook fashion to a simple recipe. Justice Kennedy’s sentence will not win a grammar award, but it is effective legal writing.
Equally effective is Chief Justice Roberts’s list in his Caperton dissent. There’s nothing lyrical about his dense, lengthy compilation of 40 unanswered questions and sub-questions. It goes on for pages. It defies being skimmed. And it too conveys a clear message: The majority has opened a huge can of worms by recognizing a due process right to recusal predicated on campaign spending in judicial elections, and the Supreme Court will come to regret having done so.
Two lists, two approaches. Both are powerful.