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Of all the qualities that a Supreme Court justice should have, one of the most important — and certainly the most neglected — is that he or she should be an able writer. The judges with the most enduring influence are those who have known how to write clearly, simply, and interestingly. It must have been satisfying to many people to hear that Judge John Roberts Jr. is a former spelling-bee champion and a ruthless copy editor who won’t abide the slightest grammatical slip. So it’s a natural question: How good a legal writer is Judge Roberts? My answer is mixed: He is above average among federal appellate judges, but his opinions as a judge on the U.S. Court of Appeals for the D.C. Circuit hardly display a faultless style. If confirmed, he probably won’t be one of the best writers to have sat on the Court, such as Robert Jackson, Oliver Wendell Holmes, and Antonin Scalia. But he will probably rank in the top quarter. It is comforting to learn that Judge Roberts is a stickler for using that restrictively and which nonrestrictively. (If you don’t know what that’s all about, see Page 230 of the current Chicago Manual of Style.) He is said to insist on differentiating between ensure and insure. (See the same source at Page 213.) Both are good practices. But what do we find in a close analysis of his opinions? In general, Judge Roberts is a lucid, careful writer. Apart from some serious congestion (to be discussed below), his opinions flow nicely. He has a relaxed, confident tone with touches of humor. He uses an occasional verbless sentence. Excellent. A KNACK FOR CLARITY There are many specific points on the positive side of the ledger. First, Judge Roberts typically begins his opinions in the “pure” style: He sets up the problem before the court, usually in a concrete way, and states at the end of that paragraph exactly how the court will resolve the problem. This style enhances clarity. It’s the prevailing practice on the Supreme Court, although not all the justices have Roberts’ knack for plain statement. Consider the following paragraph. Notice how quickly Judge Roberts captures your attention and how long he postpones the french fry: “No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘foolish,’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.” Second, Judge Roberts is an adept punctuator, and he uses more variety in punctuation than most of his colleagues on the federal bench. For example, he likes the double-dash construction — with long dashes before and after an interruptive phrase — as in this very sentence. He is a devotee of the serial comma; that is, he insists on a comma before the and or or in a series of listed items. And he’s generally good at handling phrasal adjectives, which, as stylists know, demand hyphens. Among his hyphenated phrasal adjectives in recent opinions are these: best-performing sources, case-by-case adjudication, duty-to-defend argument, fact-specific nature, and well-established rule. Third, he gives litigants their names — instead of referring to them by legalistic labels such as plaintiff, defendant, cross-appellant, and cross-appellee. Mediocre judicial writers tend to prefer those labels. Fourth, the Roberts opinions I’ve examined — several dozen of them — show an excellent use of transitions from sentence to sentence and from paragraph to paragraph. Following the Strunk-and-White dictum, Judge Roberts seems never to begin a sentence with however, but instead to use but as a sentence-starter. Most stylists would give extra points for that. FAMILIAR STUMBLES Yet not all his writing habits are exemplary. For example, he seems quite willing to indulge in the acronyms and initialisms that flood Washington. In one opinion, he refers to APA, CSRA, MSPB, IOB, and OPR, sometimes in close succession. In another opinion, he has a single paragraph referring to ECC, IT, ITC, JA, MINFAL, and MOU. Not pleasant reading. He should have taken a lesson from the 9/11 commissioners, who generally disallowed such confusing, distracting, and downright unsightly abbreviations in their stylistically excellent report. By contrast, some of Judge Roberts’ pages look like a lumpy alphabet soup. Aggravating this lumpiness is his surprisingly consistent preference for genteelisms — the slightly fancy expressions that commonly displace down-to-earth words, such as prior to for before, subsequent to for after, subsequently for later, and consequently for so. Likewise, he is prone to cop-style officialese, such as apprehended for caught, informed for told, and referenced for referred to. Since his writing is generally free of legalese, his addiction to pursuant to is all the more striking. In one six-page opinion, he uses pursuant to four times. And he indulges in a fair number of substantive footnotes, which contain additional discussion at the foot of the page. These are convenient for the writer who doesn’t want to figure out how to say in the text itself everything that needs saying. Speaking of footnotes, they ought to be reserved for the bibliographic references that clog so many of Judge Roberts’ paragraphs. In his recent opinions, citations account for an average of 26 percent of the text of each paragraph. Roberts has been guilty of this kind of congested prose: “This practice is rooted in the Federal Rules of Appellate Procedure, see Rule 28(a)(9)(A) (appellant’s brief must contain his ‘contentions and reasons for them’), and is essential to our system of appellate review, Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171, 177 (D.C. Cir. 1983) (‘The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.’).” That pernicious habit, of course, is the prevailing bane of legal style. So many state and federal judges have intelligently relegated all the volume numbers and page numbers to footnotes, while naming the cases in the text and discussing them contextually. Judge Roberts’ opinions would certainly benefit from this newer convention. It’s one that Alberto Gonzalez sensibly adopted as a member of the Texas Supreme Court — and may one day adopt as a member of the U.S. Supreme Court. Finally, I should point out that Judge Roberts is not as grammatically fastidious as some have suggested. From time to time he has dangled his participles, as here: “In considering substantial justification, it is not enough to repeat the analysis of the merits decision.” That should read: “In considering substantial justification, we must not merely repeat . . . .” He seems to prefer the past-tense pled to what usage authorities generally recommend: pleaded. And there are more clerical errors — typos — in his reported opinions than one might expect. All in all, though, Judge Roberts would raise the level of Supreme Court writing. Originally, he was to replace Justice Sandra Day O’Connor, who must be counted as among the most pedestrian writers on the Court in recent years. Now he’s been nominated to replace the late Chief Justice William Rehnquist, whose writing was somewhat better than O’Connor’s but still uneven. Roberts is an upgrade either way. Judge Roberts has expressed admiration for what was said of Justice Louis Brandeis’ opinions — that in them “the right doctrine emerges in heavenly glory and the wrong view is consigned to the lower circle of hell.” Time will tell whether the same might be said of John Roberts’ opinions.
Bryan A. Garner, president of LawProse Inc., is the author of The Elements of Legal Style (Oxford, 2d ed. 2002) and Legal Writing in Plain English (Chicago, 2001), as well as an essay on the style of Supreme Court opinions in The Oxford Guide to the Supreme Court of the United States (Oxford, 2d ed. 2005). He is also editor in chief of all current editions of Black’s Law Dictionary.

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