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