Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Wednesday, July 27, 2022

Writing like Chief Justice Roberts

Chief Justice Roberts--along with Justice Kagan--has long been reputed to be one of the best writers on the current court. This week I'm going to take a look at Chief Justice Roberts's style using his majority opinion in Trump v. Vance, which struck me as a particularly Robertsy opinion. 

1. Open strong. "In our judicial system, 'the public  has a right to every man's evidence.' Since the earliest days of the Republic, 'every man' has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves--so far as we and the parties can tell--the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President." 

This intro has a little history, a little drama, and is overall a great setup for the opinion. Personally, I would have added the conclusion up front: "We hold that they do not." As it is, the opening has the two premises of a syllogism, while letting the reader draw their own preliminary conclusion. 

2. Be efficient with the facts and procedure sections. In slightly less than two pages, Roberts lays out all the important facts and procedure that he will draw on later. Particularly in a multi-issue case, that level of efficiency is going to be hard to reach. But skillfully paring down the record to its bare essentials is a skill that too few attorneys hone. Too many briefs are littered with facts and procedural history that don't affect the issue(s) on appeal. This is especially true of things like dates. If your reader sees information, she's going to assume that it's important and try to hold on to it for later. But if you give too many details, she loses patience and starts to skim, which will not help you to persuade her. Give your reader what she needs to decide the issue--no more, no less.

3. Change up your syntax. "Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." "Wary of being exposed as the principal coconspirator, Wilkinson took steps to ensure that any blame would fall on Burr."

The basic and usual sentence structure in English is subject (with adjectives), verb (and any adverbs), object (again, with adjectives). Because this is the expected order, changing things up a bit can grab--and keep--your reader's attention. The Chief often flirts with dangling modifiers and the passive voice by putting the subject later in the sentence and verbs up front. This focuses the reader on the action rather than the actor, and makes for compelling reading. 

4.  Weave good source language into your prose rather than using block quotes. "At common law the “single reservation” to the duty to testify in response to a subpoena was “the case of the king,” whose “dignity” was seen as “incompatible” with appearing “under the process of the court.” Id., at 34. But, as Marshall explained, a king is born to power and can “do no wrong.” Ibid. The President, by contrast, is “of the people” and subject to the law. Ibid. According to Marshall, the sole argument for exempting the President from testimonial obligations was that his “duties as chief magistrate demand his whole time for national objects.” Ibid. But, in Marshall’s assessment, those demands were “not unremitting.” Ibid.

A lazy legal writer who comes across helpful language will just block quote it, thinking, "Well, he said it better than I can." While that may be true, remember that most readers don't have the patience to read block quotes. If you're okay with your reader skipping that, then go ahead. But presumably you're block quoting because the material is helpful and persuasive. Roberts deftly weaves his predecessor's language into his narrative without just giving it to the reader in a big chunk. If you must use a block quote (and sometimes you must), at least introduce it with an intro (and perhaps an outro) that tells the reader the gist of what you want her to get out of it.

5. The versatile dash. Roberts uses dashes to good effect for various purposes. For helpful reminders: "As to the dismissal, the Court of Appeals held that Younger abstention was inappropriate because that doctrine’s core justification—“preventing friction” between States and the Federal Government—is diminished when state and federal actors are already in conflict, as the district attorney and the President were." The bookend to Marshall’s ruling came in 1974 when the question he never had to decide—whether to compel the disclosure of official communications over the objection of the President—came to a head.  For important qualifiers: "While the arguments unfolded, Jefferson, who had received word of the motion, wrote to the prosecutor indicating that he would—subject to the prerogative to decide which executive communications should be withheld—“furnish on all occasions, whatever the purposes of justice may require.” For interesting asides: "His Attorney General, William Wirt—who had served as a prosecutor during Burr’s trial—advised Monroe that, per Marshall’s ruling, a subpoena to testify may “be properly awarded to the President.” "Ford obliged—from a safe distance—in the first videotaped deposition of a President." For dramatic pause: "Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." For emphasis: "In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties."

There are five punctuation marks in English that indicate pause. From shortest to longest pause, they are: the comma, the semicolon, the colon, the dash, and the period. Each one helps your reader catch his breath--to varying degrees--before taking in the next point. Dashes are often underused, and can effectively break up the flow for emphasis and relief.  

6. Italics for emphasis. The meaning of a sentence can often depend on which word(s) one emphasizes. For a reader, italics provide the best way to emphasize a word in your head and get at what the writer is saying. Roberts uses italics well and always on purpose to read the sentence in his intended way and to draw attention to important distinctions: "This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President.";  "The history surveyed above all involved federal criminal proceedings. Here we are confronted for the first time with a subpoena issued to the President by a local grand jury operating under the supervision of a state court." "But the President, joined in part by the Solicitor General, argues that state criminal subpoenas pose a unique threat of impairment and thus demand greater protection. To be clear, the President does not contend here that this subpoena, in particular, is impermissibly burdensome. Instead he makes a categorical argument about the burdens generally associated with state criminal subpoenas, focusing on three: diversion, stigma, and harassment." "But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability." "The President’s objection therefore must be limited to the additional distraction caused by the subpoena itself."

 7. Focus on topic sentences. If a reader skipped everything but the first sentence of each paragraph, could she follow your argument? If so, you've got yourself some good topic sentences. They should make the primary assertion on that point, and the rest should just be filling in the details. Go through the opinion and just read the topic sentences--they flow beautifully and get all the major points across. 

8. Lists, lists, lists. When I was getting ready for my first oral argument, an experienced colleague told me to distill my main points into lists. "Judges love lists," he said. That advice has served me well over the years. Lists can also be very helpful in writing to help guide your reader through a point, as Roberts shows:  "And, while we cannot ignore the possibility that state prosecutors may have political motivations, . . .  here again the law already seeks to protect against the predicted abuse. First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” and initiating investigations “out of malice or an intent to harass.” . . .  These protections, as the district attorney himself puts it, “apply with special force to a President, in light of the office’s unique position as the head of the Executive Branch.” . . . And, in the event of such harassment, a President would be entitled to the protection of federal courts. . . .  Second, contrary to JUSTICE ALITO’s characterization, our holding does not allow States to “run roughshod over the functioning of [the Executive B]ranch.” . . . Any effort to manipulate a President’s policy decisions or to “retaliat[e]” against a President for official acts through issuance of a subpoena, . . . would thus be an unconstitutional attempt to “influence” a superior sovereign “exempt” from such obstacles, see McCulloch, 4 Wheat., at 427." "We disagree, for three reasons. First, such a heightened standard would extend protection designed for official documents to the President’s private papers. . . Second, neither the Solicitor General nor JUSTICE ALITO has established that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. . . . Finally, in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence." 

9. History lessons and stories. As anyone who has heard him speak knows, Roberts loves history. This comes through in his opinions, particularly in this opinion. With obvious relish, he regales the reader with tales from the founding. But this is more than just an aside--it is a critical point for constitutional interpretation. Under the most dominant "original public meaning" strain of originalism, the court looks to what the ratifying public at the time of adoption would have understood the constitution to mean. So Roberts loves telling a story, but it's always a story in service of a point. He famously did this as an advocate in his Alaska v. EPA brief, in which he gave a detailed account of a mine in Alaska to illustrate the importance of local control. Roberts always understands the assignment, and uses history and stories to get his point across memorably and forcefully. None have done it better, and few can do it as well.

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