A look at Supreme Court's end-of-term writing, truth be told

By Ken Bresler
BridgeTower Media Newswires
BOSTON, MA — The most striking writing in the U.S. Supreme Court’s opinions at the end of its term was by Justice Sonia Sotomayor. She emphasized that the Fourth Amendment concerns you. She began her dissent in Utah v. Strieff this way:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. … This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant … .”

She shifted to writing in the traditional third person, but returned to a mix of the second and third person in Part IV of her dissent: “This Court has allowed an officer to stop you for whatever reason he wants — so long as he can point to a pretextual justification after the fact.” (Citation omitted.)

She continued in that vein, using “you” 24 more times and “your” 18 more times. The drumbeat of “you,” “you,” “you” was remarkable, even chilling. It was almost as if she were pointing at us individually and saying, “Americans, pay attention,” or teaching us about the Fourth Amendment one on one.

What’s the take-away lesson for we who engage in legal writing? Writing in the second person can be effective, especially when it’s unexpected.

The case with the most noteworthy phrases was the abortion rights case, Whole Woman’s Health v. Hellerstedt. In her concurrence, Justice Ruth Bader Ginsburg used a French phrase, writing: “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.” It means “for lack of something better.”

Hmm. Wasn’t it Ginsburg who said: “I don’t … like legal Latin. If you can say it in plain English, you should.” (That’s from an interview with Bryan Garner that Scribes Journal of Legal Writing published.)

In the same case, the court used the phrase “commonsense inference” (no hyphen) three times in the singular and plural. I know that in writing, “e-mail” is losing its hyphen and “health care” is losing the space between the words. But when “common sense” is used as an adjective, isn’t a hyphen common-sense punctuation?

The case was also noteworthy for its substantive writing. How many people noticed that Justice Clarence Thomas, writing in dissent, called the right to abortion “putative” four times and “purported” twice? It was the first time a Supreme Court justice has qualified the right that way. He also called the right to abortion “judicially created” and an “invention.”

The end-of-term writing featured a copious abundance of legal redundancies, including “illustrative examples,” “prior precedents,” and my longstanding favorite: “convicted felon.” (In order, Williams v. Pennsylvania, (Thomas, J., dissenting); Whole Woman’s Health (Alito, J., dissenting); and Voisine v. U.S.)

Justices were fond of writing about “prior convictions” (U.S. v. Bryant; Voisine (Thomas, J., dissenting)) and variations of that phrase: a “prior misdemeanor conviction” and a “prior, uncounseled conviction.” (In order, Voisine; Bryant (Thomas, J., dissenting).) Convictions, by their nature, are prior.

Sotomayor continued the Supreme Court practice of using punchy incomplete sentences. In Dietz v. Bouldin, she wrote, “All judges make mistakes. (Even us.)”

Justice Elena Kagan used “hypo” as a shorthand expression for “hypothetical example” for the first time in a Supreme Court case. She used “Truth be told” for the sixth time, making it one of her signature phrases. (Voisine; Puerto Rico v. Sanchez Valle.)

Finally, what was up with Kagan using “trigger” four times in a gun case? Thomas used it twice in his dissent. Here is Kagan’s first use: “The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban.” (Voisine.)

Both justices are too smart to have done it unintentionally. Kagan has an impish writing style, and Thomas has punned before. (In a 2015 concurrence about the raisin crop, he referred to a “fruitless exercise.”)
Maybe there was no other way to put it. If so, it was a case of faute de mieux/for lack of something better.


Ken Bresler, a lawyer, runs ClearWriting.com. You can follow him on Twitter at @LawWriting Coach.