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.