Law Talking Guy Talks Law: A Crisis of Justice(s)

Disclaimer: I may or may not be a professional law talking guy, I’m not your law talking guy though and you wouldn’t want me anyway.

Lawyers are professional writers. Appellate lawyers doubly so. And Appellate Judges double that. Legal writing is an art. It’s a challenge to persuasively write for a known audience of just a few people who disagree with each other while constrained by strict format and structure rules. But that’s the game.

Judicial writing is a bit easier, because the goal is to explain and teach while clearly expressing the outcome. Specifically, judges are tasked with laying out the standards as they see them on the specific relevant issues and specific relevant facts. Appellate judges are telling all the other judges and lawyers within their jurisdiction how issues are to be dealt with going forward. Judges are judged based on how correct their opinions are, but also on just how comprehensible they are. The best judicial writing is one where even if you disagree with the outcome, you can immediately see the consequences and how it will be applied going forward.

So it’s a bit shocking just how bad many conservative judges are becoming at writing.

One of the first things they teach you about legal writing is that 99% of your sentences should have a citation. That citation can be to the fact pattern, the case law, a law review article, or really anything relevant, but it’s there to prove that what you’re saying is backed up by something more than your own ass.

After that you spend most of your first year being beaten over the head by the standard writing format known as IRAC:

Issue: where you lay out what your going to be discussing, such as “are republican judges bad a writing?”

Rule: where you lay out the standards and law that apply, eg. “the best judicial writing is one where even if you disagree with the outcome, you can immediately see the consequences and how it will be applied going forward”

Analysis: where you apply the facts to the rules, “republican judges have started putting out rulings like Masterpiece Cakeshop that are incomprehensible, RNC vs DNC that cite no sources, and various screeds that simply demonstrate partisanship.

Conclusion: where you draw a conclusion, “republican judges are bad at writing.”

With that in mind, lets look at a few cases.

Masterpiece Cakeshop is the famous gay wedding cake case. It’s relevant here because it laid out the clear standard of who the hell knows what. Seriously, try to find an analysis of that case the explains what the standard it laid out it is. As far as I can tell, it’s “don’t say mean things about religion”. That’s one of the most famous cases of the last few years, and no one has any idea what it stands for.

How about the recent Wisconson case of RNC vs DNC? Look through the majority opinion and try to find more than the one citation to Purcel. There’s nothing. That sentence reads as follows:

This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam);

Now, in a real opinion, the next few sentences would look something like “ordinarily is defined as xxx [citation]. Test is yyyy [citation]. The eve of an election is zzzz [citation].” That way anyone reading it could tell how the court found that a worldwide pandemic with mandatory lockdown orders is an ordinary circumstance. Instead the court (because they were too cowardly to sign their names to the opinion) just plowed ahead and doesn’t even address the pandemic. No clue is given as to how future lawyers should approach the topic.

And can anyone tell me, based on this opinion, what standard the court is using to determine whether or not to grant a stay? Of course not, because despite the fact that that should be in one of the first paragraphs the justices failed to include it. Which makes sense because they failed to analyze it. Which makes sense because they in no way applied it. Instead they appear to have ruled based on the principle of “because”.

And then there’s the repetition of the idea that the plaintiff didn’t even ask for the relief they received, which is both not true and irrelevant. See, in court cases judges frequently issue orders that aren’t what either party asked for. It’s not baseball arbitration where they have to take one side or the other. Instead judges look to craft a remedy that best resolves the problem. Anyone who’s actually litigated a case can tell you that. So the fact that the Supreme Court is relying on it as the decisive fact (and repeating it over and over again like a drunk who only remembers part of their argument) tells you a lot.

Specifically all this adds up to the court not only being incredibly partisan, but also having given up the pretense of caring about being seen as such.

Now an example of how this has trickled down to lower courts. This TRO order by recent Trump appointee Justin Walker is in no way a proper opinion. He is likely right on the actual issues of the case, assuming he presented them accurately, which is a bold assumption. But then he turns that into a screed worthy of publication in a second tier right wing blog. At no point is he trying to display judicial temperament, nor give the appearance of having considered the issues.

The best analysis I’ve seen of this pattern is that the older crop of right wing judges believed that they needed to persuade their superiors. But the newest Federalist Society kids don’t care. SCOTUS has sent the signal that all they care about is reaching the outcome they want, so the new guys don’t even bother and assume SCOTUS will uphold them. They’d rather write Brietbart articles than well reasoned opinions, because the publicity is worth more that the actual legal analysis. And at the end of the day, they’re probably right.

Clearly the Supreme Courts unwillingness to properly write opinions is freeing up lesser right wing justices to act the same way.

So what this means is that if nothing changes, in ten or twenty years there’s going to be nothing to guide lawyers when evaluating arguments. The only baseline will be “what does justice X personally think”. As bad as that is when it comes to the big cases, it’s cataclysmic for daily practice. Our entire legal system rests on the premise that you can expect things to play out in reasonably reliable ways based on past cases. If that goes away, how can people decide what is or is not legal?




    • It’s more that they don’t care about precedent, and are no longer hiding it. Thomas had an opinion semi-recently where he flatly stated as much.

      And combine that with them all having learned from Scalia to be an asshole and you get judges like writing like Walker.

    • The law, at its core, is intended to provide justice. Whether or not it always does that is debatable (short answer, no it doesn’t) but that’s the *intent*. Republicans fundamentally are not interested in justice — they want to reward themselves and other people like them (they are, in fact, selfish). That’s why it’s impossible for them to cite cases to support their arguments. Earlier judges were (more or less, even conservative ones) looking for justice. That’s why, over time, we’ve seen things like women’s sufferage, civil rights, and LGBTQ rights. It’s not justice to retain rights to myself and those who share my beliefs while denying them to others.

      That’s why it’s tough to find case law that supports narrow interpretations and selfish outcomes. So now they just state their unsupported opinions.

      As an aside, I’ll just note that as an adjunct English professor I found students who espoused narrow and bigoted viewpoints to be very poor writers. They fall back on “Because God/I/my pastor/many people say so,” which is of course a logical fallacy. So while I’m not saying that Republicans/conservatives are less bright than people with more open minds, I’m saying … fuck it, I’m saying, yes, they’re just plain stupider.

  1. There is a disgusting tendency in the press to apply terms like “brilliant” or “intellectual” to a lot of conservative judges who are clearly just hacks. What it means is that guys like Kavanaugh get the skids greased for them by the press the moment their name is floated for a spot on the bench.

    What the press is skipping over is the way the Federalist Society has hacked the process, going back to undergrad days, for generating conservative judges. They teach conservative undergrads how to load up resumes to get into prestige law schools, and have cowed and bribed places like Harvard to take quotas of ideologues in the name of diversity.

    Clerkships get fast tracked for reactionary grads, and then the credentialling and recommendations get layered on, so that by the time one of these guys is 35 they have all of the boxes checked for a spot on the federal bench.

    The press never checks, though, if there is anything really there. They are so habituated to assume that there is such a thing as conservative legal thought that they don’t ask any more if they can even add two plus two. Anyone who can talk themself out of basic facts and logic isn’t smart, they are just profoundly broken.

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