Wednesday, May 06, 2009

Supreme Style

In my post on Monday, I gave John McGinnis a hard time for what I considered a gratuitous criticism of Justice Souter's writing ("He was the worst writer on the court by a considerable margin.") In fairness to McGinnis, I should add that he is hardly the only person ever to have criticized the literary merits of Justice Souter's body of work. According to the common critique, Souter's writing is both unnecessarily archaic ("enquiry" in place of "inquiry") and convoluted in its sentence structure. I don't fully share that view, but I acknowledge it has some basis in fact.

Here I'd like to examine the flipside: Good writing by Supreme Court justices. By my lights, any list of the best writers to have served on the Supreme Court would include: John Marshall; Joseph Story; Oliver Wendell Holmes, Jr.; Louis Brandeis; Robert Jackson; and Antonin Scalia. (Benjamin Cardozo would be on the list except that he wrote all of his best opinions while serving on the NY Court of Appeals.) Each of these Justices had (or in Justice Scalia's case, still has) two important things going for them: the ability to lay out their arguments in clear forceful language and some gift for turning a catchy phrase. How much is that worth? Quite a lot, I think.

First, though, consider a somewhat different view. In a well-known article in the 1971 Indiana Law Journal (not available for free online), Robert Bork argued that it is remarkable that the views of Holmes and Brandeis---expressed in de facto dissents from cases during the period of the first Red Scare---later became free speech orthodoxy because they are, in Bork's view, "deficient in logic and analysis, as well as history." The views of Holmes and Brandeis became law, Bork says, because they "were rhetoricians of extraordinary potency, and their rhetoric retains the power . . . to persuade, almost to command assent." Bork goes on to argue why, in his view, their views are nonetheless mistaken.

Bork thus offers us a view of rhetoric that is familiar from the portrayal of sophistry in the plays of Aristophanes (especially "The Clouds") and colloquial pejorative usage of the term "rhetoric." The core idea is that fancy talkers and writers persuade us that the weaker argument is the stronger and vice-versa. This view resonates as well with a certain anti-intellectual tradition in American life, in which plain speech is a sign of virtue---a view that was taken to the point of absurdity in the claims of some of the supporters of both former Presidents Bush that their difficulties uttering coherent sentences were somehow evidence of their connection with typical Americans.

There is, of course, a kernel of truth in the Bork/Aristophanes view of rhetoric: Sometimes fine speech or a clever turn of phrase oversimplifies or otherwise masks the truth. Silver-tongued demagogues certainly do exist. Justice Jackson made this point in a barb at Justice Frankfurter in West Virginia State Bd of Educ. v. Barnette: "oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning." Yet Jackson himself was most certainly not striking a blow against all rhetoric, for that very opinion contains perhaps his most famous declaration, and one worthy of Holmes or Brandeis: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

I do not know whether Jackson knew or met George Orwell. Jackson was about a decade older. I do know that both men valued clarity in writing even as each could also spin a metaphor or simile. For example, Jackson, dissenting in Korematsu v. United States, says that the principle of racial discrimination, once validated by a court,
"lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need." Orwell, in the same essay in which he decries sloppy writing, including tired or incoherent imagery, says that such "prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse." (Emphasis in original).

For Bork, as for Aristophanes, the great wordsmith uses rhetoric to obscure the truth. Jackson and Orwell do not disagree that words can be used for this purpose, but they regard such prose as debased, even (to Orwell at least) incompetent. This is not to say that any idea that can be expressed clearly or elegantly is, ipso facto, true. It is to say that writers who use language to reveal rather than obscure their true meaning thereby enable readers to evaluate their arguments. In my view, Holmes and Brandeis did just that, and thus I disagree with Bork. In my view, the Holmes/Brandeis view of free speech eventually became law because Holmes and Brandeis were right. Their gift for expression enabled us (eventually) to see the truth, but in other contexts where they expressed their views clearly, we can value the clarity even as we disagree with the viewpoint. For example, Holmes's infamous "three generations of imbeciles are enough" is a frankly eugenicist claim.

On the current Supreme Court, I give Justice Scalia high marks for writing consistently interesting and clear opinions, which is not to say that I agree with him very often. I give the prize for the best turn of phrase in recent years to CJ Roberts for his line in the Seattle voluntary integration case: "
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." That clearly and powerfully expresses an idea---that government must be colorblind even in seeking a post-racial society---with which I disagree.

In the end, I'm with Orwell in believing that clear expression reflects clear thinking. Clear thinking does not always lead to truth or justice, but it's surely better (other things being equal) than muddled thinking. Accordingly, I very much hope that in choosing a Supreme Court nominee from otherwise attractive candidates, President Obama places some weight on writing ability.

Posted by Mike Dorf


Sobek said...

Robert's phrase is so powerful because it illuminates by implication how ridiculous the opposite position is: you do not eliminate racial discrimination by making racial discrimination constitutionally mandatory.

I think Justice Brennan was a good writer with whom I nevertheless often disagreed. I lost an enormous amount of respect for him when I read about his profound moral cowardice in the Roe v. Wade decision, in which he manipulated Justice Blackmun into writing an opinion for which Brennan didn't want to take the heat. I also wonder how modern abortion law would look if it had been written by a clear writer, instead of Blackmun.

Caleb said...

I should first admit my bias -- I'm not sure I'm a clear thinker or an especially clear writer. However, I'm not sure that clarity IS always a good thing. That is, I think it can function to obfuscate the truth as much as it reveals it. Where the truth is complicated, it can be a disservice, or a smoke screen for incorrect views.

To take a couple examples:

Quebec is a nation.

The Civil War was about stopping slavery.

The Second World War was about stopping Hitler's evil.

All of those sentences are concise. I would argue that they're far from true -- the first depends on what you mean by "Quebec" -- the province? the population of the province? the French-speaking population of Canada? The population of the Province of Quebec who consider themselves Quebecois? (And that's without defining "nation").

The same is true for the second two sentences (or at least, I've been told so).

So, to get to my point (I warned about this at the top); clear phrasing does not necessarily have anything to do with clear thinking -- and since we still have to evaluate the thoughts behind it, I believe it occasionally have a distracting quality.

Truth might equal beauty, but beauty does not necessarily equal truth.

Neil H. Buchanan said...

"I'm with Orwell in believing that clear expression reflects clear thinking."

Orwell argued that the arrow of causality runs in both directions: clear expression leads to clear thinking, and clear thinking leads to clear expression.

People tend to say things like, "I know what I mean, but I can't say it clearly." (This was a standard defense of Bush I.) Orwell would say (and I agree) that the process of forcing oneself to say something clearly forces one to think more clearly, and doing so often reveals that the writer/speaker really didn't know what she meant until she could say it clearly.

This doesn't undermine any of Mike's points, but it's important to understand that Orwell's big point is much deeper than commonly appreciated.

egarber said...

Orwell would say (and I agree) that the process of forcing oneself to say something clearly forces one to think more clearly,There's no question in my mind that this is true. In my job, I have to translate a customer's stated business needs into working software / workflow solutions.

Typically, when somebody talks lazily in "black boxes" (general terms for complex relationships), a whole slew of incorrect or even conflicting assumptions seep into the end product.

That doesn't mean all language has to be at the nuts-and-bolts level -- but where detail is needed, I hear alarm bells when people talk vaguely.

Jamison Colburn said...

While we're on the subject of "clarity" of expression and the failings of particular Justices, I just want to punch a ticket here to remind some folks (like Sobek) how *unclear* some of Justice Scalia's opinions are -- deliberately so in some instances. Lucas was a perfect example. Witty, crisp prose which were nevertheless used to obscure basic facts (that he didn't have the votes he needed to overturn Penn Central and the 15 years of precedent that had attached to it) and sew confusion into the law for the following 10 years. One of Justice Souter's notables, United States v. Mead, is usually criticized by people on the right for having "muddled" Chevron and other scope of review precedents. But if you read it carefully, the opinion actually makes its point pretty clearly: there's an unavoidably multi-factored analysis that must be completed to decide the level of deference due an agency interpretation.

You tell me: which is worse? I was neither that fond of, nor particularly hostile to, Mead when it was decided (although I'll confess my misgivings about Lucas the first time I read it). Since then, lower courts have made a hash of Mead, Chevron, Seminole Rock, Auer, etc. -- but I don't think that has as much to do with Justice Souter's opinion as it does the biases and other shortcomings of the judges applying it (both on SCOTUS and in the lower courts).

From a purely communicative standpoint, thus, I think we ought not lose sight of motive when we're talking about "clarity" (and I can't imagine either Brennan or Blackmun was motivated to deliberately obscure Roe's relationship to prior privacy precedent).

John Q. Barrett said...

Jackson knew a lot of (fellow) writers--U.S. journalists of course; foreign reporters who covered Nuremberg; Mencken; Steinbeck; Thornton Wilder; etc.--but I've found no sign that he knew Orwell. (As Jackson's biographer-in-progress, I would be pleased to learn of it if anyone knows otherwise.)

Regarding Jackson's writing, plenty of it is on the Jackson Center website ( One fine analysis is Nanneska Nall Magee, Playing It Dangerous: Justice Jackson’s Passionate Style, 2 Scribes Journal of Legal Writing 123-41 (1991) (available on the Jackson Center site in PDF form).

I heard recently that in the early 1950s, a piece of SDNY courthouse wisdom was that "Learned Hand wrote the best English and Jackson wrote the best American." (Credit to Judge Miriam Goldman Cedarbaum, who knew Hand when she clerked for a SDNY Judge in 1953-54.)

r.friedman said...

I believe that Justice Souter's writing became clearer, and his questioning at oral argument became more pointed, during his time on the court. There is no evidence that his preparation diminished or his erudition dimmed, it appears that he learned to edit what he brought to the case and to deal with the verities separately from complexities.

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