'My goodness,' U.S. Supreme Court term features both 'super-duper' and regrettable writing

Ken Bresler, The Daily Record Newswire

“[I]nterpretive jiggery-pokery” got the most attention. That’s a barb, meaning trickery, from Justice Antonin G. Scalia’s dissent to and characterization of the Supreme Court’s recent Obamacare case, King v. Burwell.

“Pure applesauce” probably got the second-most attention. That’s from the same dissent. The context indicates that Scalia used “applesauce” as a synonym for hogwash or, perhaps, an expletive evoking the barnyard.

But let’s look at other language in the opinions that closed the 2014 U.S. Supreme Court term — language (much of it penned by Scalia) that deserves our attention now that we have weighed the substance of the opinions, which is more important than the writing.

Justice Clarence Thomas made a passing joke in a Takings Clause case involving an agricultural order that took away 47 percent of California raisin growers’ crop one year.

“[H]aving the Court of Appeals calculate ‘just compensation’ in this case would be a fruitless exercise,” he wrote in his concurrence to Horne v. Department of Agriculture.

Justice Scalia continued to write opinions with bullet points, most recently in Michigan v. Environmental Protection Agency, in effect giving permission to less lofty lawyers to employ this useful technique in formal legal writing.

The justices continued to add a less formal tone here and there. “Maybe, maybe not,” wrote Justice Sonia M. Sotomayor, dissenting in the raisin Takings Clause case. “Quite the contrary,” she wrote in her dissent to Glossip v. Gross. “Unquestionably,” wrote Scalia in his dissent to an excessive force case, Kingsley v. Hendrickson. “True enough,” wrote Chief Justice John G. Roberts Jr. in the Obamacare case.

“Which is one good reason why that is not our job.” That’s how Justice Elena Kagan began a paragraph, not just a sentence, in a patent royalties case.

Using punchy incomplete sentences was just one way that the justices were conversational. Roberts used, paradoxically, a run-on sentence to admirably explain a chain of reasoning.

According to the petitioners in the Obamacare case, an applicable taxpayer in a state with a federal health insurance exchange “would be eligible for a tax credit — but the amount of that tax credit would always be zero. And that is because — diving several layers down into the Tax Code — Section 36B says that the amount of the tax credits shall be ‘an amount equal to the premium assistance credit amount,’ §36B(a); and then says that the term ‘premium assistance credit amount’ means ‘the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year,’ §36B(b)(1); and then says that the term ‘premium assistance amount’ is tied to the amount of the monthly premium for insurance purchased on ‘an Exchange established by the State under [42 U. S. C. §18031],’ §36B(b)(2); and then says that the term ‘coverage month’ means any month in which the taxpayer has insurance through ‘an Exchange established by the State under [42 U. S. C. §18031],’ §36B(c)(2)(A)(i).”

Most sentences bog down after 20 words. This one didn’t. But Roberts is no ordinary writer.

Neither is Kagan. Watch her effectively use the second person and rhetorical questions in the EPA case. There, the Court found that the EPA refused to consider cost when it found a regulation appropriate and necessary. Kagan dissented.

“Suppose you were in charge of designing a regulatory process,” she wrote. “The subject matter — an industry’s emissions of hazardous material — was highly complex, involving multivarious factors demanding years of study. Would you necessarily try to do everything at once? Or might you try to break down this lengthy and complicated process into discrete stages? And might you consider different factors, in different ways, at each of those junctures? I think you might. You know that everything must get done in the end – every relevant factor considered. But you tend to think that ‘in the end’ does not mean ‘in the beginning.’ And you structure your rulemaking process accordingly, starting with a threshold determination that does not mirror your end-stage analysis. Would that be at least (which is all it must be) a ‘reasonable policy choice’? [Citation omitted.] That is the question presented here, and it nearly answers itself.”

Indeed it does. Kagan seemed as if she were trying to engage, converse with, and persuade us, the readers, and not only her colleagues.

Conversational is one thing; overly casual is another. An end-of-term decision in a patent royalties case happened to involve a Spider-Man toy. It could easily have involved another item, but because it involved Spider-Man, Kimble v. Marvel Entertainment led to some language out of — and a citation to — comic books.

“The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can),” Kagan wrote for the Court.

She explained patent rights this way: “Patents endow their holders with certain superpowers, but only for a limited time.” She described the leading precedent as “this superpowered form of stare decisis.” Disagreeing with that point, Justice Samuel A. Alito Jr. wrote in dissent that “we do not give super-duper protection to decisions that do not actually interpret a statute.”

In the last substantive paragraph of the majority opinion, Kagan wrote in part: “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘Spider-Man,’ p. 13 (1962) (‘[I]n this world, with great power there must also come — great responsibility’).”

I admire Kagan’s use of “undecide” as a verb, but I’m dubious about her jiggery-jokery in citing Spider-Man as an authority.

Scalia, too, may have crossed the line into overly casual, in his opinion in the same-sex marriage case: “Huh?” “What say?” and “[N]ever mind,” he wrote in his dissent to Obergefell v. Hodges. He criticized “[t]he stuff contained in today’s opinion.” Stuff? “My goodness,” he wrote in his concurrence to Glossip v. Gross.

Some of Scalia’s recent writing was both overly casual and barbed. “Welcome to Groundhog Day,” he wrote in his concurrence to Glossip, the Eighth Amendment case about lethal injections. The concurrence was largely an attack on the dissent by Justice Stephen G. Breyer. Scalia called the dissent “gobbledy-gook” and called Breyer “the Drum Major in this parade” to abolish the death penalty.

Some of Scalia’s language passed from colorful and barbed into colorful and sarcastic. Some passed from sarcastic into caustic. He accused the dissenters of having “a let-them-eat-cake obliviousness to the needs of others,” called an issue “a question far above the judiciary’s pay grade,” and characterized the dissenters’ citation of studies “as though they have discovered the lost folios of Shakespeare.”

“Do not use the creative arithmetic that Justice Breyer employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.” Scalia continued in his Glossip dissent, concluding later that, “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

My goodness.

In his dissent to the same-sex marriage case, Scalia called the majority opinion a “judicial Putsch.” He attacked its writing as “mummeries and straining-to-be-memorable passages,” “silly extravagances,” “showy profundities” and “the mystical aphorisms of the fortune cookie.” (Mummeries, by the way, are pretentious or hypocritical shows or ceremonies.)

Just who is straining to be memorable (or mummerable) here? And the hyphenated adjectival phrase “straining-to-be-memorable” constitutes strained writing. So does the phrase “a let-them-eat-cake obliviousness.”

“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law,” Scalia wrote toward the end of his dissent.

The world also does not expect civility, collegiality and eloquent understatement on TV “talk” shows or in political campaigns. But it does expect them from Supreme Court justices.



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