In Memoriam: The Writing of Justice Scalia

Steve Petteway
Collection of  the Supreme Court
of the United States

As we all know, Justice Scalia passed away unexpectedly last weekend at the age of 79. Justice Scalia's ideologies and judicial philosophies made him a lightning rod for criticism, even in death. Those ideologies aside, most of us who study legal writing agree that Justice Scalia was one of the Court's best writers. Acerbic at times, yes. But always pointed, powerful, precise--just what we're looking for in good legal writing.  Especially in dissents, which Justice Scalia was famous for.

In remembering her friend, Justice Ginsberg said that Justice Scalia's dissents made her opinions "notably better" than the drafts she initially circulated.   

My favorite piece of advocacy (yes--advocacy) from Justice Scalia is his Atkins dissent, which includes four of the most powerful sentences I've ever read. The Atkins majority held that the 8th Amendment's prohibition again cruel and unusual punishment bars the execution of the mentally retarded (the Court's words). Justice Scalia turned the tables, advancing his opinion that Atkins' crime was the only thing cruel and unusual in the case:  

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. 

I'm also fond of Justice Scalia's "monster" critique of the Lemon test in his Lamb's Chapel dissent:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.  

As for one-liners, many have cited Justice Scalia's opening in Block, issued while he was a member of the D.C. Circuit, as his best: 

This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that "No man should see how laws or sausages are made."

In a 2013 interview, Justice Scalia told Jennifer Senior of New York Magazine that his favorite one-liner was the "wolf line" from his dissent in Morrison. The Morrison case involved a separation of powers question, and in his dissent, Justice Scalia wrote: 

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that a gradual concentration of the several powers in the same department, can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

In recent years, Justice Scalia gave us some fun phrases: argle-bargle (from Windsor), jiggery-pokery and pure applesauce (from Burwell), and judicial Putsch (from Obergefell). His use of language even inspired Slate to create Antonin Scalia's "Sick Burn" Generator. My insult?

One would think that Megan's arrogance is a genetic panopticon. Words no longer have meaning.

Apropos? Ironic? Maybe both, but also "pure" Scalia.

Justice Willett, Mufasa, and the Shadowy Place

The written opinions of Justice Willett of the Texas Supreme Court

Justice Don Willett

never disappoint--at least for fans of good legal writing. Justice Willett's writing style, devoid of the legalese that plagues so many judicial opinions, is crystal clear, and his opinions are conversational and interesting.

A few weeks ago, the Texas Supreme Court decided a high-profile case involving Texas cheerleaders' right to put Bible verses on the signs they hold up at sporting events. The Court didn't make any substantive rulings on the merits as the case was before the Court on a mootness issue, In his concurrence, Justice Willett evokes images from Disney's The Lion King to (gently) suggest to the litigants and the trial court that the Court needs clarification on the trial court's rulings before the case (presumably) comes back to the highest Texas Court on appeal again.

The concurrence is worthy of a read, even if you care nothing about the issues in the case. Justice Willett's writing draws the reader in, like a good novel you can't put down. I can't do it writing "justice," so I'll just quote some of my favorite parts and let you read it for yourself:

One of the more memorable scenes in The Lion King occurs as Mufasa and Simba sit high atop Pride Rock overlooking Mufasa’s kingdom. In this granddaddy of all father-son moments, Mufasa shows Simba the territory he will inherit as king: “A king’s time as ruler rises and falls like the sun. One day, Simba, the sun will set on my time here, and will rise with you as the new king.” Simba is awestruck: “And this will all be mine?” “Everything,” says Mufasa. “Everything the light touches,” murmurs Simba in wonder. But then Simba spots dimness in the distance and turns to Mufasa for an explanation: “What about that shadowy place?” Mufasa replies, “That’s beyond our borders. You must never go there, Simba.” 

In narrowly deciding that the school district’s policy change did not moot the controversy in this case, the Court today rightfully stays within the borders of its authority, and I concur in full. I write separately, however, to ask, “What about that shadowy place?”

*******

Bottom line: We don’t know. What does the trial court’s order accomplish? What claims have been preserved? What claims have been waived? In our pitched adversarial system, it is not uncommon for litigants to talk past each other, and uncertainty pervades the parties’ briefs to this Court. But answers to these questions are critical for they speak to the fundamental free speech and free exercise rights enshrined in our Constitution. Because this is an interlocutory appeal, the Court appropriately does not address those core merits issues, rendering Mufasa’s admonition that Simba “never go there” inapposite for the moment. 

But if this case returns to the trial court, a future appellate court, including this one, may well be required to go there. My concern is that this case may return to the trial court for a final decision only to reappear on our docket with no clarity as to what this order achieves and what claims are actually live. If that situation arises, the parties and trial court would do well to confront the shadowy place in this litigation and clarify with precision the status of this order and the cheerleaders’ claims.

The case is Matthews v. Kountze Independent School District. You can find all opinions in the case here.

Happy Friday!

The Flamethrowers? Really? Act

Acts on the books here in the U.S. have some entertaining names:

Rep. Eliot Engel

--The Popcorn Promotion, Research, and Consumer Information Act (1996)
--The Y2K Act (1999)
--Death on the High Seas Act (1920)

But a new act sponsored by New York Congressperson Eliot Engel might be, as MSNBC's Steve Benen says, "the best-named legislation in the history of the U.S. Congress":

The Flamethrowers? Really? Act

Engel is apparently a big fan of Saturday Night Live and Seth Meyers, who inspired the act's name. Only two U.S. states regulate the purchase of flamethrowers, but Engel hopes to change that by introducing this legislation, which would put some purchasing restrictions on these weapons. The Act is currently in committee.

Benen's article on the Flamethrowers? Really? Act is here.

Happy Friday!

Justice Sotomayor's Style in Hurst v. Florida

Last fall I discussed the briefs in an important death penalty case before the Supreme Court, Hurst v. Florida. Earlier this month, the Court struck down Florida’s death penalty scheme as unconstitutional. Justice Sotomayor wrote the majority opinion, which contains some good examples of her strong writing style.

“Just the Facts”

Many lawyers and judges include too many irrelevant details and not enough important ones. As Justice Sotomayor demonstrates, short, straightforward sentences with only the most important details help the reader focus on what’s important. Consider this passage of the factual background:

On May 2, 1998, Cynthia Harrison’s body was discovered in the freezer of the restaurant where she worked—bound, gagged, and stabbed over 60 times. The restaurant safe was unlocked and open, missing hundreds of dollars. The State of Florida charged Harrison’s co-worker, Timothy Lee Hurst, with her murder.

During Hurst’s 4–day trial, the State offered substantial forensic evidence linking Hurst to the murder. Witnesses also testified that Hurst announced in advance that he planned to rob the restaurant; that Hurst and Harrison were the only people scheduled to work when Harrison was killed; and that Hurst disposed of blood-stained evidence and used stolen money to purchase shoes and rings.

Hurst responded with an alibi defense. He claimed he never made it to work because his car broke down. Hurst told police that he called the restaurant to let Harrison know he would be late. He said she sounded scared and he could hear another person—presumably the real murderer—whispering in the background.

No discussion of who found Harrison. No great detail about the investigation or what lead authorities to Hurst. No recitation of the specifics of that “substantial forensic evidence.” No names.   

Why? Because these details aren’t important to the legal question at issue, don’t support the majority’s decision in any way, and would be superfluous. Justice Sotomayor keeps the reader focused on only the most salient facts.  

Sentence Starters

In both Point Made and Point Taken, Ross Guberman recommends removing bulky transition phrases in favor of more streamlined ones. Justice Sotomayor does that expertly in her Hurst opinion:

-Even if Ring normally requires a jury to hear all facts necessary to sentence a defendant to death, Florida argues, Ring does not require jury findings on facts defendants have admitted.

-At most, [Hurst’s] counsel simply refrained from challenging the aggravating circumstances in parts of his appellate briefs.

-And in the Apprendi context, we have found that stare decisis does not compel adherence to a decision whose underpinnings have been eroded by subsequent developments of constitutional law.

Alliteration and Imagery

I love alliteration, and Justice Sotomayor gives us a good example of double alliteration when talking about Florida’s efforts to defend its death sentencing scheme:

-Florida launches its second salvo at Hurst himself.

Justice Sotomayor also uses water imagery to show the “tide of change” in constitutional jurisprudence:

-Without contesting Ring’s holding, Florida offers a bevy of arguments for why Hurst’s sentence is constitutional. None holds water.

And later,

-Time and subsequent cases have washed away the logic of Spaziano and Hildwin.  

A Review of Lawyers, Liars, and the Art of Storytelling

Lawyers, Liars, and the Art of Storytelling by Jonathan Shapiro is probably best characterized as a “why-to” rather than a “how-to” tell persuasive stories in a legal setting. To be sure, Shapiro offers numerous suggestions to improve both written and oral advocacy, but the book is mostly an irreverent mix of stories—stories about real lawyers and real cases; stories about TV lawyers; stories about Hollywood types; and stories about non-legal characters who are, themselves, larger than life. Shapiro adeptly shows readers how to craft a story and uses the stories he crafts to show why stories are important:

If the book sometimes reads like an excuse to tell stories rather than as a manual on how to tell them, then I have done my job. Stories are meant to be instructive and entertaining. Stories that are instructive but not entertaining are called lectures.

Shapiro makes his criticism of lawyers clear from the beginning: many lawyers fail to recognize the importance of storytelling, fail to learn their clients’ stories, and fail to tell those stories persuasively. Why is legal storytelling so important? According to Shapiro,

What lawyers actually do—all of them—is gather information and then share it with others in the most effective way possible. They do this to persuade others to do or not to do something or to make a certain decision….Storytelling—what it is, why it matters, how to do it—is not, therefore, a metaphor for legal advocacy. It is legal advocacy itself.

Shapiro’s chapters on Aristotle’s rhetorical triangle, logos, ethos, and pathos, are particularly important to those of us interested in legal writing. Shapiro argues—rightly, I think—that while each leg of the triangle is necessary to craft a story that can withstand scrutiny, no two triangles should be alike:

Every triangle has three sides. But each triangle has its own unique shape and appearance...It’s is the lawyer’s job to tell the right story, to build the appropriate triangle for his or her client, to make subjective judgments based on the variables as to whether to spend more or less time on establishing ethos, displaying logos, or eliciting pathos.

Jonathan Shapiro
Photo courtesy of
www.artoftellingstories.com

What follows is a series of stories designed to both show the power of these rhetorical techniques and to teach lawyers how to construct their triangles for maximum effectiveness. Sounds as fun as a dentist appointment, right? Wrong. The lure of Lawyers is Shapiro’s ability to entertain and instruct simultaneously. You won’t even realize how much you’ve learned until you find yourself starting to implement Shapiro’s storytelling methods in your own work.   

Lawyers is a delight throughout, chock full of hilarious quips, anecdotes, tips, and pointers. Some of my favorites include:

·         Building credibility (“In a robe, [Ruth Bader] Ginsburg was as commanding as the biblical Ruth. Out of her robe, she was my mother-in-law.”);

·         Being or having a good editor (“If I could have a superpower, it would not be invisibility or the ability to fly. It would be the power to edit.); and

·         Using technology to enhance storytelling (“Technology requires that all storytellers, including lawyers, rethink how to communicate with the audience.”).

Lawyers is—as reviewer Paul Reiser promises—informative, insightful, and funny. The 270-page book is a quick read. But its irreverence shouldn’t be confused with lack of substance. Lawyers has much to offer both to trial lawyers and those whose written work is their primary means of advocacy. No need to bring a highlighter or take notes, though. Thanks to Shapiro’s own ability to tell stories, you won’t need either to learn (and remember) lots from Lawyers!   

Speaking to Win & Singular "They"

I'm attending Steven Stark's "Speaking to Win" CLE at the State Bar of Georgia today. I'm excited about this CLE and will report details later!

In the meantime, talk amongst yourselves about the singular "they," which is becoming the norm. I have made no secret that I oppose this--at least in writing. I use the singular "they" in speaking all the time, but using it in writing seems too informal for me. My position is becoming the minority one, but I'm sticking to it, at least for now.

This NPR article on the topic is a good one, as is the American Dialect Society's article on its choice of the singular "they" as the 2015 Word of the Year.    

Happy Friday!

Poetic Justice?

This judicial "poem" from Judge Cain of the Franklin County Ohio Court of Common Pleas has been making the rounds. The poem came about after an inmate who was serving time for a relatively minor crime sued guards at the Correctional Reception Center. The inmate told guards that the showers were making him sick, but the guards refused to let the inmate use the bathroom, causing him to soil himself. 

Judge Cain found the suit frivolous and dismissed it in a rhyming opinion that has struck some as unnecessary ridicule:

Cold showers caused his bowels to malfunction

Or so the plaintiff claims

A strict uncaring prison guard

Is whom the plaintiff blames.

While in line for recreation

And little time for hesitation

His anal sphincter just exploded

The plaintiff’s britches quickly loaded.

It made the inmates laugh and play

To see the plaintiff’s pants this way

The foul, unsightly, putrid mess

Caused the plaintiff major stress.

Claiming loss and shame to boot

The plaintiff filed the present suit

But the law provideth no relief

From such unmitigated grief.

Neither runs nor constipation

Can justify this litigation

Whether bowels constrict or flex

De minimus non curat lex. [The law takes no account of trifles.]

You can read the story here, including details about less-than-ideal conditions at Ohio's prisons.  

I'm all for fun in law. But is this the right case to "have some fun" with? Does the poem strike you as appropriate under the circumstances?