Sunday, February 5, 2017
On Friday, Dan posted a few articles about Supreme Court nominee Neil Gorsuch. I want to elaborate on the last set of articles--focusing on Judge Gorsuch as a writer. Justice Scalia was certainly known for having a distinct, sometimes caustic, style of writing. Justice Kagan is known for trying to make her opinions accessible to the intelligent non-lawyer. So, what kind of writer would a Justice Gorsuch be?
As Dan noted, the Wall Street Journal has an article discussing Judge Gorsuch's writing style. If you can't get past the WSJ paywall, the ABA Journal has pulled out some of the highlights in this article. According to the WSJ & ABA Journal, Judge Gorsuch tries to write opinions that are "accessible" and enjoyable to read. Apparently, he has "elevated the recitation of facts 'to a form of wry nonfiction.'"
Perhaps because I have a pre-teen nephew, my favorite example in the articles of Judge Gorsuch's catchy writing style comes from a July 2016 dissent. The Washington Post describes the case in this manner:
On May 19, 2011, a physical education teacher at Cleveland Middle School (CMS) in Albuquerque named Margaret Mines-Hornbeck sought assistance over her school-issued radio. A student, referred to as F.M. in the case to shield the child’s identity, was a 13-year-old seventh grader who, the court order said, “had generated several fake burps, which made the other students laugh and hampered class proceedings.” He was arrested by a school police officer for disrupting the education process and suspended from school.
The boy’s mother sued two school officials and the police officer, claiming her son had been subject to unlawful arrest and excessive force. The appellate court upheld a decision by district court judges in support of the school officials and the officer.
Judge Gorsuch started his dissent with these words:
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.
The Washington Post contains the remainder of his dissent, where he explains how his colleagues were wrong on the law.
Judicial philosophy and politics aside, the Court needs more justices who will promote good (interesting) legal writing. It looks like a Justice Gorsuch would fall into this category.