Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
21 May 2011

US Supreme Court judges and their writing styles


From the New York Times
Keep the Briefs Brief, Literary Justices Advise
Published: May 20, 2011

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

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.

Since the interviews were first posted in 2008, they were little noticed except by Supreme Court advocates, who have studied and dissected them. At least one leading law firm prepared its own informal transcripts.

The justices turn out to be a surprisingly literary bunch. Justice Kennedy, the court’s swing justice, had barely started talking when he began quoting from Hamlet, and he went on to discuss Dickens, Trollope, Faulkner and Solzhenitsyn.

Justice Ginsburg said she had learned much from a course Nabokov taught at Cornell on European literature.

“He was a man in love with the sound of words,” she said of her former professor. “He changed the way I read, the way I write.”

Justice Thomas, on the other hand, cited only a single author, and then only by way of contrast. “It’s not a mystery novel,” he said of a good brief. “People can’t think, ‘I’m Agatha Christie,’ or something like that.”

He said his own style was accessible to everyone, a point that is open to dispute. Consider, for instance, the opening sentence of his most recent opinion: “The False Claims Act (FCA), 31 U.S.C. §§3729 — 3733, prohibits submitting false or fraudulent claims for payment to the United States, §3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the government’s name, §3730(b)(1).”

In the interview, Justice Thomas provided evidence that his writing is easy to grasp, including a remembered airport encounter with a man he assumed to be a law enforcement official.

“He looked like a deputy sheriff,” Justice Thomas said. “He had a little midriff going.”

“Here’s a guy,” the justice went on, “who looked like he clearly didn’t go to college, who said that ‘I’ve read all your opinions.’ Well, that’s accessibility.”

The interviews were conducted by Bryan A. Garner, the president of the legal-writing company, LawProse. Mr. Garner, the editor of Black’s Law Dictionary, has written a book on “the art of persuading judges” with Justice Antonin Scalia, and the two are at work on a sequel.

The justices generally said the briefs submitted to the Supreme Court were of high quality but too long. The briefs, which are presented in plump printed booklets, can contain up to 15,000 words, and many advocates use almost every one. “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”

The justices had very little good to say about articles published in law reviews.

“What the academy is doing, as far as I can tell,” Chief Justice John G. Roberts Jr. said, “is largely of no use or interest to people who actually practice law.”

The strongest writers on the current court are generally thought to be Justice Scalia and Chief Justice Roberts.

“Justice Scalia is always interesting and fun to read,” said John Q. Barrett, a law professor at St. John’s University. “He’s pugnacious, combative and smart. Chief Justice Roberts is eloquent and stylish, and he can turn a good phrase.”

Professor Barrett is at work on a biography of Justice Robert H. Jackson, perhaps the finest writer in the court’s history. Five of the eight justices interviewed by Mr. Garner mentioned their admiration of Justice Jackson’s prose.

When Chief Justice Roberts and Justice Scalia end up on opposite sides of a decision, which is not often, sparks can fly.

Writing for the majority last month, Justice Scalia said state agencies could sometimes sue states in federal court in part because private parties can.

Chief Justice Roberts said the two kinds of suits were not comparable. “It is the difference between eating and cannibalism; between murder and patricide,” the chief justice wrote. “While the ultimate results may be the same — a full stomach and a dead body — it is the means of getting there that attracts notice. I would think it more an affront to someone’s dignity to be sued by a brother than to be sued by a stranger.”

Justice Scalia returned fire in a footnote.

“We think the dissent’s principle of familial affront less than universally applicable, even with respect to real families, never mind governmental siblings,” he wrote, adding, “Confining one’s child to his room is called grounding, while confining a stranger’s child is called kidnapping.”

In the interview, Justice Scalia said it was all right to have a little fun in a decision.

“There has to be a certain weight and dignity to the opinion,” Justice Scalia told Mr. Garner, “but that doesn’t rule out an occasional witticism or pun or something of that sort.”

He followed through in a footnote this month in a dissent in a case about water rights, proposing that people who live in Wyoming should be called Wyomans. “The dictionary-approved term is ‘Wyomingite,’ which is also the name of a type of lava,” Justice Scalia wrote. “I believe the people of Wyoming deserve better.”

Justice Elena Kagan, judging by her simultaneously conversational and caustic debut dissent last month, is also a formidable writer. “Now, really,” she wrote, casually dismissing as absurd a distinction relied on by the majority.

A single justice declined to participate in the project. “I feel like a rotter,” Justice David H. Souter, who retired in 2009, wrote to Mr. Garner. But, he explained, “Since I don’t think my own work is worth writing home about, I’d feel presumptuous telling other people what they ought to do.”

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