For passionate U.S. Supreme Court watchers, the last couple of weeks must have felt like Christmas came early; what with momentous decisions handed down on key social issues, including same- sex marriage, affirmative action and the highly explosive decision which struck down Section 4 of the Voting Rights Act of 1965.
Overall, in the latest U.S. Supreme Court term, which began on October 1, 2012 (and ends on Sunday, October 6, 2013), the justices have signed 73 opinions after oral arguments, according to the ScotusBlog, a private blog devoted to comprehensively covering the Supreme Court of the United States.
To get a sense just how much reading U.S. Supreme Court analysts and correspondents have had to wade through over the past several months, just consider there have been 169 opinions issued by the 9 justices, including 78 majority opinions, 39 concurring opinions, and 52 dissenting opinions.
All this adds up to a boatload of reading for the few, those lucky few, who are responsible for covering the U.S. Supreme Court and sifting through the thicket of opinions.
As you can imagine just by the breadth of issues covered and the monstrous size of the opinions released, this doesn’t exactly make for light reading. What’s more, if an individual justice has a predilection for writing long-winded rambling opinions, it must make the correspondents’ job all the more difficult.
Curious just how many of the current justices have a natural flair for writing with a fluid poetic style when composing their opinions; I thought I would check in with some U.S. Supreme Court correspondents. According to Adam Liptak, who covers the Court for The New York Times, `` There are three great writers on the Court: [John G.] Roberts and [Elena] Kagan are great explainers and debaters, and both can turn a phrase.’’ `` [Antonin] Scalia is also enormously readable’’, Liptak says, ``though his sarcasm is not to everyone's taste.’’
Hailing Roberts, Kagan, and Scalia as some of the more graceful writers on the present Court, as Liptak does (and most of his contemporaries would most likely agree) this led me to wonder how these justices stack up against their predecessors, dating back to 1789?
With that in mind, I consulted with some of the leading legal scholars in the country, to get their opinion which justices exhibited a natural gift for the written word.
What follows, then, are some answers that came back.
- ``I think you might find general agreement that Robert Jackson wrote the best prose of any of the justices -- eloquent without being florid, shrewdly realistic without being cynical. Like John Marshall, another great stylist, Jackson had a knack for expounding the structural design of the Constitution, and also the conflicts within that design. For a sample, see his opinions in the Barnette and Gobitis (compulsory flag-salute) cases and his famous opinion in the steel seizure case.
Holmes had the most brilliant aphorisms, which is probably why he is the most quoted of all the justices ("great cases, like hard cases, make bad law", "general propositions do not decide concrete cases", etc.)and also was capable of great eloquence (see his dissents in the Abrams free-speech cases and the Schwimmer case of a woman denied immigration because she would not swear to bear arms.
My own favorite on the current Court is Ruth Ginsburg. Her style is spare and unadorned, without rhetorical flourishes or quotable soundbites, but it is tightly reasoned and always well supported by evidence and examples. She reminds me of Justice Brandeis in her powerful intellect and keen perception of the real-life consequences of Supreme Court decisions. Her concurring opinion in the Obamacare case and dissent in the recent Voting Rights case are virtuoso performances. They are (characteristically) understated, but efficiently grind up the opposing opinions into rubbish. This small, frail lady has been doing valuable service to the republic.''
-Robert W. Gordon, Professor of Law at Stanford University; a preeminent legal historian, prolific scholar with expertise in American legal history is author of a number of key works on legal philosophy, including ``The Legacy of Oliver Wendell Holmes (1992), and `Storie Critiche del Diritto'' (Critical Legal Histories) (1995).
- ``Several earlier justices come to mind as notable prose stylists. Holmes and Brandeis were wonderful writers. Holmes gave us some wonderful language. For example, dissenting in Lochner v. New York, which struck down a state law limiting working hours, he tartly observed: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." He also cautioned, in Schenck v. United States, that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre and causing a panic." And his dissenting opinion in Abrams v. United States gave us the wonderful image of the marketplace of ideas as the basis of the First Amendment. There are many other examples.
As for Brandeis, I am particularly partial to this line from his opinion in Whitney v. California, which remains to my mind the most eloquent defense of freedom of speech ever articulated by anyone on the Supreme Court: "Men feared witches and burned women." Brandeis also observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Both of these lines came in dissenting opinions (well, as a technical point, the Whitney opinion is called a concurrence, but Brandeis rejected the Court's whole approach to the First Amendment issue yet reluctantly agreed with the result because of how the issue was presented in the lower courts).
A few other justices also come to mind. One is Robert Jackson, who in West Virginia State Board of Education v. Barnette observed that, "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." Jackson also famously observed in Brown v. Allen: "We are not final because we are infallible, but we are infallible only because we are final."
Another is the second Justice John Marshall Harlan, who observed in Cohen v. California (a case that overturned the disorderly-conduct conviction of a man who at the height of the Vietnam War had a jacket emblazoned with "Fuck the Draft"): "While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric."
Justice Stevens was no slouch as a stylist, either. One of my favorites from him comes from his opinion in Young v. American Mini Theatres, which upheld zoning restrictions on adult cinemas and bookstores: "Few of us would march our sons and daughters off to war to preserve the citizen's right to watch 'Specified Sexual Activities' in the theaters of our choice."
Finally, although I don't think he quite ranks with these others overall, Justice Souter produced a jaw-dropping line in a footnote during his first term on the Court. The case, American National Red Cross v. S.G., dealt with a very technical procedural issue. Responding to Justice Scalia's scathing dissent, Souter wrote: "The dissent accuses us of repeating what it announces as Chief Justice [John] Marshall's misunderstanding, in [Case 2], of his own previous opinion in [Case 1]. We are honored."
-Jonathan L. Entin, Associate Dean for Academic Affairs; David L. Brennan Professor of Law, and Professor of Political Science at the Case Western Reserve University School of Law in Cleveland, Ohio, where he teaches Constitutional Law, Administrative Law, Courts, Public Policy, and Social Change, along with a Supreme Court Seminar. Professor Entin clerked for Justice Ruth Bader Ginsburg when she was on the U.S. court of Appeals.
- ``I like [Robert] Jackson, with his Barnette decision [Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school] being the classic example. [Oliver Wendell] Holmes is good also, but he tends to be a bit on the sarcastic side in his dissents. I think [Louis] Brandeis writes better and with more passion. Compare their two dissents in Olmstead. I think the first [John Marshall] Harlan wrote well, as shown in particular by his Plessy dissent. On the current Court, I think [Anthony] Kennedy writes very well—his recent decision in Windsor is a good example. ''
-Robert Langran, Professor in the Department of Political Science at Villanova University and author of ``The United States Supreme Court: An Historical and Political Analysis'' and ``The Supreme Court: A Concise History.''
- ``One's appreciation of writing style probably has something to do with one's agreement with the content. In my opinion, Justice Scalia is the most rhetorically gifted member of the Court. He is especially good at skewering obfuscation and pretension. No doubt that is more winning if one is not the target.
For an example of Scalia's mature style, with all the features that excite both fans and critics, I don't think you can do better than Part I of his dissent in Windsor, the Defense of Marriage Act case decided last week.''
-John C. Jeffries, Jr., David and Marry Harrison Distinguished Professor Law at the University of Virginia Law School and author of a biography on Justice Lewis F. Powell, Jr., a justice he once clerked for soon after graduating from the University of Virginia Law School.
- `For [Robert] Jackson, it's hard to top his majority opinion in West Va School Bd v. Barnette and his dissent in Korematsu. For [John] Marshall, the classics are Marbury and McCulloch. [Louis} Brandeis's dissents in Olmstead and Whitney top his list. For Harlan, I'd go with the Plessy dissent. And OMG, I left out Holmes, for whom the Abrams dissent, the Lochner dissent, and the majority in Missouri v. Holland would be my stylistic favorites.''
-Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell University Law School, who has written over seventy law review articles and essays on constitutional law and related subjects and is the co-author (with Laurence Tribe) of ``On Reading the Constitution.''(Harvard University Press, 1991).
``John Marshall--Oliver Wendell Holmes, Jr.--Robert Jackson were certainly gifted writers but for a "poetic" style, I would go with Holmes who, in Grant Gilmore's words, "knew how to reduce an idea to its bare bones in a single, flashing phrase."
-Philip C. Bobbitt, Distinguished Senior Lecturer, School of Law at The University of Texas at Austin is one of the nation's leading constitutional theorists and author of six books, including: ``Constitutional Fate'' (1982) and ``Constitutional Interpretation'' (1991).
July 1, 2013