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.

Brandeis Impact Litigation Practicum

This semester, I had the honor to help launch the Brandeis Impact Litigation Practicum at the University of Louisville Brandeis School of Law.

Through the practicum, law students are connected to clients who want to influence important legal cases through amicus curiae (friend of the court) briefs.

Amicus briefs, especially at the U.S. Supreme Court, can play a very influential role. They can provide diverse and detailed perspectives beyond the often narrow focus of the parties themselves and help judges reach better decisions in cases that could have a major social impact.

This semester, three very smart UofL Law students wrote a brief on behalf of the National Association For Public Defense and the Kentucky Association of Criminal Defense Lawyers, encouraging the U.S. Supreme Court to review a decision by the Kentucky Supreme Court. In its decision, the Kentucky court put serious limits on the ability of criminal defense attorneys to question the credibility of accusing witnesses. Many criminal cases are "he-said, she-said" situations and witness credibility is the key issue.

The case implicates rights under both the Sixth Amendment and the Fourteenth Amendment and could have a negative impact on criminal defendants across the country. The way our clients see it, a criminal defendant unable to attack the credibility of his or her accuser will often be left with no other defense.

Students Abby Braune, Evan Comer, and Taylor Richard all worked tirelessly on the brief with guidance from me and my fellow professors Dan Canon and Sam Marcosson. The end result is a brief that both they and their clients should be proud of.

The brief can be read here.

Introducing "Heightened Scrutiny"

This past weekend I officially launched Heightened Scrutiny, a podcast about the Supreme Court's landmark civil rights cases. The very first episode explores the people and arguments that led to the important (and infamous) decision in Roe v. Wade.

I will be covering a wide array of important cases with this podcast, which I'm writing, recording, and editing all by myself. I hope to reach a very broad audience, helping everyone (not just lawyers or law students) understand more about how the Supreme Court approached its most famous cases and why it ruled the way that it did in each one.

Each episode will feature archival news reports on the major cases, as well as clips from the oral arguments themselves, in which the Supreme Court justices question the attorneys about the biggest social and legal issues of the day.

Hopefully, Heightened Scrutiny will be an entertaining way for listeners to become constitutional law experts (or maybe just fans) without having to go to law school. A cheaper way, if nothing else. I hope you check it out and enjoy it.

The Judicial Branch Impugned

We live in strange times, my friends. Before the Trump era began, which seems like very long ago already, I would not have believed you if you had told me that the President of the United States would someday use his Twitter account to lambast and impugn sitting federal judges and the entire judicial branch along with them.

I would have laughed.

But just such a thing is the regular practice of our current president. On February 4th, just after his executive order banning immigrants and refugees from certain countries from entering the United States was put on hold by a federal judge (for the fourth or fifth time), Trump tweeted:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

That so-called judge is United States District Judge James Robart, is a nearly fifteen-year veteran of the federal bench. He was appointed by George W. Bush and approved by the Senate 99-0. According to the NY Times, he is a "mainstream Republican" in his personal politics (whatever that means anymore as Trump now leads the GOP), and is generally well-respected.

Robart is hardly the only federal judge whose motives and qualifications have been attacked by Trump. In late May of last year, when he was still just Candidate Trump, the president launched a Twitter war against United States District Judge Gonzalo Curiel. Judge Curiel's offense? He dared be the judge presiding over a lawsuit against Trump University (which ultimately settled before trial). According to Trump:

I have a judge in the Trump University civil case, Gonzalo Curiel (San Diego), who is very unfair. An Obama pick. Totally biased-hates Trump

Trump subsequently attacked Curiel for being a "Mexican" and thus being inherently biased against the candidate who ran on openly anti-Mexican and anti-immigration platforms. And then Trump doubled down on his comments, refusing to apologize.

All this would be a sideshow but for Trump's role as the chief executive of the United States government. As president, he seems strangely unaware of (or unconcerned about) the well-established (and widely known) system of checks and balances upon which our country's government depends. The legislative branch passes laws and approves funding for the executive branch. The executive branch enforces the laws but can also veto them. The judicial branch reviews laws and executive actions for their compliance with the constitution. The executive branch appoints judges to the judicial branch and the legislative branch approves or rejects those appointments.

Trump, however, appears to understand none of this, or at least oppose this system whenever he doesn't get what he wants out of it.

Lest anyone be prone to false equivalence, while it is true that presidents have long discussed or even criticized specific judicial decisions, none have previously suggested that the judges themselves are corrupt or illegitimate for ruling the way they did.

Certainly there have been corrupt and biased judges in the past, and there will be corrupt and biased judges in the future. And many times judges make bad decisions. But the stability of our governing system requires that the executive branch not accuse the judicial branch of illegitimacy any time the president doesn't get his way.

The executive branch will win some court cases and it will lose some. It will sometimes get told it has gone too far. The very basic job of the president in those situations is to firmly disagree with the result, if need be, but never to suggest that the only legitimate branch is his own. Is that too much to ask?