Old Books and Old Justices

In my frequent antique store book-hunting excursions, I often seek out old history and law books. The older the better. An old history or law book is like a time machine, zooming a current day reader off to a different world with different social norms, historical assumptions, and methods of thought.

To my delight, I was recently able to find a 1938 copy of professor Jerome Hall's Readings in Jurisprudence law school textbook for just two dollars. In it, along with dozens of well-known essays and articles about legal theory and judicial decision-making, is an excerpt from a 1921 essay by Benjamin Cardozo, at the time a state court judge in New York. Just over ten years later he would become a justice of the United States Supreme Court.

The excerpted article, "The Nature of the Judicial Process," describes Cardozo's multi-faceted approach to judging, an approach that would probably seem far too nuanced and malleable to the far more rigid contemporary schools of statutory and constitutional interpretation. 

Below is the excerpt as it appears in Professor Hall's book:

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking a path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art.

And, as a bonus relic from the past, I found a brief (and positive) review of Professor Hall's book, published in the 1939 volume of the fledgling Louisiana Law Review. The reviewer concludes:

Obergefell Grows Equal Protection Teeth on its Second Birthday

In Obergefell v. Hodges, Justice Anthony Kennedy focused primarily upon marriage as a "fundamental right" protected by the Due Process Clause of the Fourteenth Amendment. As such, the states were required to come up with a strong argument why they could deny it to anyone, let alone gay couples. They couldn't, at least not in the eyes of five of the justices, and the gay marriage bans were struck down.

Justice Kennedy didn't totally limit his reasoning to the due process question of rights, however. He did specifically reference the doctrine of equal protection - also required by the Fourteenth Amendment - and said that it and due process are tied together, based on similar principles of liberty and freedom and both protective of dignity and autonomy.

But many observers have criticized Obergefell for focusing too heavily on fundamental rights and not enough on equal protection. 

That's where Arkansas comes in. There, as in most states that I'm aware of, it is customary for the male spouse of a mother to appear on her child's birth certificate. It happens automatically, regardless of whether the husband is really the biological father of the child. There is no distinction for cases of adultery or artificial insemination. If you're a husband and your wife has a child, your name goes on the birth certificate. End of story.

But that wasn't the case for same-sex spouses in Arkansas. If a woman gives birth there and is married to a woman, her spouse's name didn't go on the birth certificate. Her spouse was not automatically considered the parent of the child - at least when it comes to documenting the birth.

Two couples challenged this rule. They won at the trial court level, but the Arkansas Supreme Court, considering the scope of Obergefell, found that the birth certificate rule "pass[es] constitutional muster" and upheld it.

Today, the U.S. Supreme Court summarily reversed that conclusion in Pavan v. Smith, an anonymous "per curiam" opinion. Why? Because Obergefell held that same-sex couples are entitled to "the constellation of benefits that the State has linked to marriage" on "the same terms and conditions" as different-sex couples. In other words, those couples are entitled to equal protection.

"Disparate treatment" is an equal protection term for discrimination. It doesn't get any clearer than that: Obergefell prohibits treating same-sex couples differently than different-sex couples when the state is doling out various "rights, benefits, and responsibilities" of marriage, including the presumption of parentage to the spouse of the birth mother. If husbands who are not biological fathers are entitled to be listed, then wives who are non-biological mothers must be listed. Simple enough.

But it apparently isn't that simple to Justices Gorsuch, Thomas, and Alito. Gorsuch, writing for them all, argued in dissent that summary reversals such as Pavan are only allowed when "the law is settled and stable...and the decision below is clearly in error," and this is not such a case.

Why? Well, first because there is no "constitutional problem with a biology based birth registration regime" standing alone (an overly simplistic conclusion based primarily on the sharply divided plurality decision of Michael H. v. Gerald D.). Second, the plaintiffs didn't directly challenge the artificial insemination provision of the law, just the general rule about "husbands" that excluded same-sex wives, so there was no reason for the Court to cite it as a reason for reversal. And third, the wife who is left off the birth certificate initially can simply adopt the child later and get added that way. 

Finally, Gorsuch says that Arkansas conceded before them that the artificial insemination rule, 9-10-201, would apply equally to same-sex spouses and thus there was not really a controversy for the court to resolve:

Thus, Gorsuch says, "it is not even clear what the Court expects to happen on remand that hasn't happened already." After all, Arkansas was going to list the mothers on the birth certificates anyway. This is much ado about nothing, or at least much ado about the wrong statute.*

But to me, the majority's view is more compelling. The rule that the plaintiffs challenged - the general requirement that a male spouse's name should appear on the birth certificate regardless of actual paternity, but not a female spouse's name, is discriminatory on its face. It treats same-sex and different-sex married couples differently. Under Obergefell, that's not allowed.

I am glad that six members of the Court took the opportunity to give Obergefell some equal protection teeth, especially as states and cities continue to try creative (and hateful) end runs around it. For example, the Texas Supreme Court is still considering whether Houston can deny marital benefits to municipal employees based on the sex of their spouse. Hopefully they will seriously consider Pavan and rule consistently with it.

*Update: As Mark Stern at Slate documents, Justice Gorsuch's recitation of the facts in the case is totally incorrect. Arkansas never conceded that it would list the birth mother's female spouse on the birth certificates. And it made no sense for the plaintiffs to challenge the artificial insemination rule because they didn't want to overturn it, they referenced it in support of their argument that the rule they did challenge - the rule limiting the naming of spouses to "husband" - was pointlessly discriminatory in violation of Obergefell. All of this suggests Gorsuch's opinion is fraught with errors that should be corrected.

New Adventures

Two years ago today, the Supreme Court delivered its opinion in the case of Obergefell v. Hodges, ruling that state bans on same-sex marriage were unconstitutional. Two of the cases consolidated in under the Obergefell banner were from Kentucky: Bourke v. Beshear and Love v. Beshear. I had the honor to be part of the legal team representing the married and unmarried couples in those two cases.

Since that incredible victory, new opportunities opened up for me. I was given the great honor to teach at both Bellarmine University (a very high quality private college in Louisville) and the University of Louisville Brandeis School of Law (my alma mater). Once I got a taste of the college classroom - as a teacher rather than a student, which is only slightly less fun - I realized that my calling was not really as a litigation attorney. I wanted to teach.

So over the next several months I explored various teaching opportunities as they arose. I applied for many positions and interviewed for a couple of them. 

To my great excitement, I was offered a position as Assistant Professor of Legal Studies at Morehead State University, an excellent regional school here in my beloved home state of Kentucky.

One of our state's finest resources is our regional university system, of which I am not only a fan but also a product. I earned my bachelor's degree from Murray State University, roughly the same size as Morehead (approx. 10,000 students). Murray is in the flat west, while Morehead is in the rugged and hilly east.

I am very much looking forward to starting my next chapter, to meeting all of the great students who will no doubt excel in my classes, and to calling Morehead my home away from home. I plan to keep blogging here as well, hopefully more often than I did while still in regular practice.

Thanks to all of my clients, supporters, mentors, students, and colleagues. Go Eagles!

Bad Judicial Writing: Justice Gorsuch Edition

Today, the Supreme Court handed down its opinion in the case of Henson v. Santander Consumer USA, Inc., dealing with debt collection practices by parties who buy debts from creditors and then attempt to collect those debts themselves, rather than hiring third parties to do the collection work for them.

The Court ruled unanimously that companies like Santander, which buy up defaulted accounts from banks and loan companies and go after the debtors themselves, are not subject to the rules of the federal Fair Debt Collections Practices Act.

Aside from the real-world effect of this ruling - lots of debtors will likely be subjected to nasty debt collection practices with no legal recourse - the opinion is noteworthy because it is the first written by the newest member of the Supreme Court: Justice Neil Gorsuch.

There seems to be a popular consensus among legal observers, lawyers, and even other Supreme Court justices that Justice Gorsuch is a really great writer.

Ross Guberman at Legal Writing Pro took a look at some of Gorsuch's opinions written while Gorsuch was a judge on the Tenth Circuit Court of Appeals. Guberman called Gorsuch a "gifted" writer.

But, as Guberman notes, Gorsuch very obviously strives to be a Great Writer, and thus often goes too far, drafting passages that are real clunkers of unnecessary wordiness, feature misused transitions, lack a needed "that," or are just grammatically bad in general.

So what of his first Supreme Court opinion? Is it "gifted" or is it bad, writing-wise?

My humble and unqualified take: it's pretty bad.

Despite being just over ten pages long, Gorsuch's Henson opinion is full of strange usages, clunky and over-long sentences, and poor phrasing. Below are some of the worst examples.

Before you continue, please note that I do not profess to be an expert on legal, or any, writing. My comments below are based on my own limited knowledge of grammar and other rules of usage and my own personal preferences. Your mileage may vary.

"And more besides"

In the very first sentence of his first opinion, Justice Gorsuch writes this:

Many commentators on Twitter focused on Gorsuch's use of alliteration. Some people like alliteration (me) and others do not (fools). But what stuck out to me was his use of the phrase "and more besides." This phrase is not commonly used by many people. Usually, the word "besides" is used to mean alongside or in comparison with. "So-and-so was the only person besides some other person to do a thing." Gorsuch uses "and more besides" in a technically correct way, but because "besides" is used far more commonly in other situations, it makes the reading awkward. "Besides" what? Writing, "...downright deceit, and other forms of harassment," or something like that would have been clearer and a little easier to digest.

But this isn't the worst example of the phrase in the opinion. Gorsuch actually uses "and more besides" twice. On page 9, he writes this:

This is bad for two reasons. First, it is clunky just like it was the first time he used it. "For these reasons and others, we will not presume," would be more concise and easier to read.*

Second, and more importantly, this leaves a big gap in the Court's explanation of its legal reasoning. "For these reasons" refers to the reasons the Court has already listed above. But "and more besides" refers to other, apparently unstated reasons for the conclusion the Court reaches. It's kind of important for the Court to clearly state all the reasons it has for ruling the way that it does. Why not just write, "[f]or these reasons we will not presume..." and leave it at that?

No Commas

Compared to the dozen-clause behemoths that were sentences in 1800s writing, sentences in American writing today are usually quite short. Excessive comma usage is exceedingly rare. But just because concision and active voice are now the dominant trends doesn't mean a comma can't be a useful tool to create a little rhythm or focus the reader on a major point. Justice Gorsuch does not agree, apparently.

Looking past the awkward use of "haven't much litigated," there is at least a minor argument to be made that this sentence is missing four commas. For example: "But, the parties haven't much litigated that alternative definition, and in granting certiorari, we didn't agree to address it, either."

I'm no writing expert, and I often drop commas that would be grammatically correct yet seem unnecessary, but Gorsuch's lack of commas undercuts his noteworthy point. The way he has written the sentence encourages the reader to speed through it without noting the significance. Perhaps the comma before "either" would be clunky but the others would give the sentence a more dramatic rhythm.

Past Participle

In the very next sentence, Justice Gorsuch writes this:

No, I'm not criticizing his use of the old English seafaring idiom "by the board." It's dated but not obscure. The problem here is his unnecessary use of "much narrowed," rather than "narrower." This is ironic because, in the very next paragraph, Gorsuch begins a multi-page analysis of Congress's use of the past participle "owed" in the statute at issue.

For what it is worth, Gorsuch does use "narrower," rather than "much narrowed," several pages later, just as he should have the first time.

Idioms and Uncommon Words

OK, now I'm criticizing his use of the old English seafaring idiom "by the board." Gorsuch loves old idioms, and he peppers his first SCOTUS opinion with them. "By the board," "cheek by jowl," "constable and quarry;" they're all there.

And Gorsuch also uses uncommon words where common words might make his opinion easier to read. For example, he uses "nub of the dispute," rather than "source of the dispute" or "point of the dispute" or something a little more recognizable to a reader in 2017. Like most of my complaints here, this is a very minor quibble.

A less minor quibble (to me): on page seven, Gorsuch writes "on their view," rather than the far more common "in their view," when referring to the position of the petitioners, the debtors. I don't think I've ever seen that before.

Unnecessary Wordiness

My final quibble with Justice Gorsuch's writing is this: he often writes two, three, four, or even ten words when one will suffice.

The absolute worst example is the following passage, found near the end of his opinion.

That final sentence is a big, clunky mess.

First, the phrase "many and colorable" is awkward. "Many" obviously means lots or several more than one. In legal writing, the word "colorable" means to have at least a semblance of justice or validity. It is also used to mean ostensible, apparent, or plausible.

With his phrasing, Gorsuch creates a distinction where there doesn't necessarily need to be one. He seems to be saying that there were many arguments made, and there were colorable arguments made, but perhaps not all of those many arguments were colorable. Why not just write "many colorable arguments?"

The distinction here seems unnecessary. It only serves to make the parties and the amici wonder among themselves which of their arguments Gorsuch considered colorable and which ones he viewed as irrelevant or unconvincing.

But that's not even my biggest complaint about the sentence as a whole. My complaint is with the section beginning with "a fact that suggests." Here Gorsuch writes eleven words when just one would not only suffice, but be far more readable. Consider:

"We do not profess sure answers to any of these questions, but observe only that the parties and their amici present many colorable arguments both ways on them all, [confirming] that these matters are for Congress, not this Court, to resolve."

Far shorter, far easier to read, and clearer to boot.

In conclusion, I agree with Ross Guberman to an extent. Justice Gorsuch is a good writer. He excels at constructing engaging narratives and articulating his reasoning without legalese. But he tries too hard to be quirky and clever and his writing suffers for it.

Because of their ages, Justices Gorsuch and Elena Kagan will likely work together for several more decades to come. She is easily the best writer on the Court. Hopefully she will exert some influence upon her colleague and help him cut the fluff, sharpen the wit, and err on the side of brevity.

Update: Turns out that Mr. Guberman thought the first Gorsuch opinion was great. For the reasons stated above and more besides, I must respectfully disagree.

Good Faith and the Rule of Law

Sixty-three years ago today, the U.S. Supreme Court struck down racial segregation in the case of Brown v. Board of Education. In doing so, it completely reversed an interpretation of the Equal Protection Clause of the Fourteenth Amendment that had held constitutional sway for more than a half century. In the 1896 case of Plessy v. Ferguson, the Court had ruled that "separate but equal" segregation of the races was consistent with equal protection.

In its Brown decision, the Court not only overruled Plessy as a general interpretive guide to the meaning of the Fourteenth Amendment, but it also ordered every public school district in the country to desegregate "with all deliberate speed:"

[T]he [school desegregation] cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

Despite this order, school desegregation in many places around the country did not occur with much speed at all - deliberate or otherwise. With lower courts guided only by this vague command, an organized resistance quickly manifested across the South, with governors and other state officials refusing to desegregate, some even going so far as to physically stand in the way of students themselves.

Many school districts resisted for a decade or more before desegregating. One district in Mississippi finally conceded that Brown v. Board of Education is the settled law of the land just this year.

Chief Justice Earl Warren and his colleagues on the Court in 1954 made a critical mistake in Brown. They assumed, or perhaps just hoped, quite naively, that state and local officials around the country would operate in good faith and dutifully adhere to the rule of law as they swore to do when they took their oaths of office.

The federal Constitution is the highest law in the land, and the federal Supreme Court is the final word on what the Constitution means, thus all other courts and jurisdictions must follow its commands. When state and local officials vow, in various forms, to defend and follow the constitution, that's what they're supposed to do.

But what if they don't? What if they refuse?

That's the tricky thing about the rule of law: it only works if people play along. The aftermath of Brown made this abundantly clear, but recent events are driving the point home once again.

What happens when government officials have a duty to enforce the law but decide not to? What happens, say, when an elected official violates the law, but nobody responsible for holding him or her accountable has any interest in doing so?

The rule of law simply ceases to have meaning.

Article 2, Section 4 of the Constitution says that an elected official, such as the President, can be removed from office through a process called impeachment:

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article 1, Sections 2 and 3, put the process of impeachment in the hands of the House of Representatives and the Senate. The House impeaches, and the Senate tries and convicts (or acquits).

So there is a constitutional method of enforcing the law against elected officials. Those who break the law can be removed from office by both houses of Congress working together, one to impeach and the other to convict.

The problem, of course, is that Congress is a political body, and the presidency is a political office. There are only two viable political parties in American politics, and control of the houses of Congress and the presidency each lies in the hands of only one party at a time. So, like in the past, there are times when Congress is controlled by one party and the presidency controlled by the other. Or, like today, Congress and the presidency are controlled by just one party.

When Congress and the presidency are controlled by one party, the weakness of the impeachment clauses reveals itself. A law-breaking president can only be held accountable by Congress. But if Congress and the president are members of the same party, impeachment only happens if Congress rejects its party loyalty in favor of upholding the law in good faith.

That seems like a pipe dream these days. The controlling party is now unwilling to hold its members accountable for anything. Even such serious crimes as obstruction of justice are committed with no fear of impeachment.

Was this inevitable? And if so, how could the Framers of the Constitution make such an egregious oversight when they drafted Articles 1 and 2?

At the time of the Framing, the tribalism of partisan politics in America had not yet entrenched itself. The Framers did not have the benefit of hindsight that we enjoy. But is it true that the Framers simply could not have foreseen our current political reality where party loyalty so totally trumps the rule of law?

Perhaps that was true for some of them, but not for all. One of the Framers was George Washington, and he, a member of no political party, became the country's first president. In his farewell address of 1796, he saw the writing on the wall, and issued this warning:

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.

Nobody listened.

And now, today, the only effective method to remove law-breakers from the office of the presidency relies entirely on a good faith adherence to the rule of law by partisans who, in the periodic event that they control all of Congress and the Oval Office, may have no political will or even incentive to so adhere.

Like the aftermath of Brown v. Board, our current political reality shows us very clearly that the rule of law depends almost entirely on the good faith of our political leaders. God help us.