“Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger.”
You’d be forgiven for thinking that’s the opening line to a novel, rather than a passage from a court opinion in an otherwise dry insurance case.
In the weeks since President Donald Trump nominated Neil Gorsuch to the Supreme Court, the federal judge on the 10th Circuit Court of Appeals has been closely scrutinized for his views and qualifications. But here on the NewsHour arts desk, we’ve been most interested in his writing style, which has been described as witty, accessible and appealing. The high court nominee also has a penchant for narrative, often weaving in evocative stories or literary references.
With Gorsuch’s confirmation hearings ongoing this week, we spoke to several legal experts, as well as a former clerk of Gorsuch’s, who said his writing style helps make his opinions more easily understood.
A gift for storytelling has “long distinguished the great writers on the Supreme Court from the many competent but forgettable ones,” said Ross Guberman, who wrote “Point Taken: How to Write Like the World’s Best Judges.”
In a blog post examining Gorsuch’s particular skills as writer, Guberman writes that the judge “manages to make procedural history come alive.” Guberman points to an opinion Gorsuch issued using the Greek myth of Sisyphus, who had to forever roll a boulder up a hill, to illustrate how never-ending the case in question had become:
We’re beginning to think we have an inkling of Sisyphus’s fate. Courts of law exist to resolve disputes so that both sides might move on with their lives. Yet here we are, forty years in, issuing our seventh opinion …
“Rarely have I read such a masterly account of civil procedure,” Guberman wrote. (In a follow-up post on Gorsuch as writer, however, Guberman criticized the judge’s sometimes faulty syntax and grammar.)
David Feder, a former law clerk for Gorsuch, said this kind of narrative style comes as a result of writing many drafts.
“When I started clerking for [Gorsuch] I learned it’s no accident. It definitely takes a lot of hard work to be a good writer, and a concise writer,” Feder said. “I wouldn’t be surprised if he went over 50 drafts in longer or harder opinions.”
The judge also reads widely, according to Feder.
Early on his clerkship, Feder said, he asked Gorsuch what he should read to improve his writing, and assumed the judge would recommend someone like legal writer Bryan Garner.
“But he said: ‘Go read Charles Dickens, and some of the classics,’” Feder said. “That surprised me.”
But Josh Blackman, an associate professor at the South Texas College of Law in Houston, said that while Gorsuch is a talented writer like Antonin Scalia, the Supreme Court justice he may replace, his language is less masterfully assertive.
Instead of the “scorched earth” language for which Scalia was famous, Blackman argued, “you see that cool, silver fox, where he’s going to use language, but not in an aggressive way.”
This worries Blackman a bit, who said the court’s resident “scorched earth” writer is Justice Sonia Sotomayor, an Obama appointee, and that the court’s conservative wing lacks a justice who will employ that kind of aggressive language.
But he said Gorsuch’s writing would still resonate, in part because of the way he employs narrative, just as Scalia did.
“Narrative can make a reader understand not only what the law is but how case came about,” Blackman said, “so that anyone who reads it will connect to it.”
Blackman points to an opinion where Scalia cited the literary works of the Brothers Grimm to argue against restrictions on violent video games. Blackman could repeat several lines of the opinion from memory. Here’s an excerpt:
California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” … Cinderella’s evil stepsisters have their eyes pecked out by doves …. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
Perhaps the most famous literary reference Gorsuch has made was in his dissent over a case where a teen was arrested for fake burping and disturbing other students in class:
If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded …
Often enough the law can be “a a** — a idiot,” Charles Dickens, Oliver Twist — and there is little we judges can do about it.
Gorsuch referenced Dickens in another opinion, on the Hobby Lobby health insurance challenge, writing:
In many ways this case is the tale of two statutes. The ACA compels the Greens to act. RFRA says they need not. We are asked to decide which legislative direction controls. The tie-breaker is found not in our own opinions about good policy but in the laws Congress enacted.
Another interesting use of the literary by Gorsuch, which Feder pointed to, is from an opinion in which he argued for separated and divided power among states by referencing the young adult novel (and blockbuster movie franchise) “The Hunger Games”:
Ours is not supposed to be the government of the Hunger Games with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse.
“He’s saying it should not be like ‘The Hunger Games’ where the Capitol rules everything,” said Feder.
Gorsuch has employed such references, Feder said, “so that the people who go to court understand why they won or why they lost, not just their lawyers.” As a Supreme Court justice, accessible writing would be even more important, Feder added.
Blackman, though, argues that while Gorsuch’s writing may be more accessible and popular, especially among his colleagues, it may also come with drawbacks.
“An important question is whether the lack of punch will resonate among law students,” said Blackman, who noted that Scalia often wrote not for the lawyers but the next generation of law students “who could one day vindicate his principles.”
Correction: This piece originally said the Brothers Grimm reference was in a Gorsuch opinion. It was an opinion by Scalia.