Writing and the Law

Our chapter on the judiciary discusses legal briefs and opinions. The New York Times reports:

Justice Ruth Bader Ginsburg, whose writing is clear but dry, said her style owed something to Vladimir Nabokov, the author of “Lolita.”

Justice Antonin Scalia said he used the occasional pun.

Justice Anthony M. Kennedy, whose opinions can meander, said he aspired to Ernest Hemingway’s stripped-down language, sharing his distaste for adverbs.

Justice Stephen G. Breyer, who has been known to cite foreign law in his opinions, said he looked abroad for literary inspiration, mentioning Montesquieu, Wittgenstein, Stendhal and Proust.

Justice Clarence Thomas said a good brief reminded him of the television show “24.”

In a trove of interviews that are to Supreme Court obsessives what the State Department cables released by WikiLeaks were to students of American foreign policy, eight Supreme Court justices described how they write their opinions, what they look for in briefs and the art of legal writing generally.

The interviews, which had been available only as videos on the Web site of a company that tries to teach lawyers how to write, have just now been published in The Scribes Journal of Legal Writing.

In the transcripts, Chief Justice Roberts explains the importance of the topic:

Language is the central tool of our trade. You know, when we’re looking at a statute, trying to figure out what it means, we’re relying on the language. When we’re construing the Constitution, we’re looking at words. Those are the building blocks of the law. And so if we’re not fastidious, as you put it, with language, it dilutes the effectiveness and clarity of the law. And so I think it’s vitally important — whether it’s a lawyer arguing a case and trying to explain his position, whether it’s a legislator writing a law, whether it’s a judge trying to construe it. At every stage, the more careful they are with their language, I think, the better job they’re going to do in capturing in those words exactly what they want the law to do; in persuading a judge how to interpret it; and as a judge, in giving a good, clear explanation of what the law is.

Roberts also stressed the importance of brevity: "I have yet to put down a brief and say, `I wish that had been longer.' So while I enjoy it, there isn't a judge alive who won’t say the same thing. Almost every brief I've read could be shorter" (p. 35).

Justice Scalia said: "When I edit drafts of my law clerks, most of my work consists not of additions, but of deletions" (p. 52).

Justice Thomas said that he tells his clerks: "Look, the genius is having a ten-dollar idea in a five-cent sentence, not having a five-cent idea in a ten-dollar sentence" (p. 100).