Associate Justice Neil Gorsuch walks down the steps of the U.S. Supreme Court after his Investiture ceremony on June 15, 2017. (Photo: Diego M. Radzinschi/ALM)
The interminable U.S. Senate proceeding concerning the nomination of Judge Neil Gorsuch to replace Justice Antonin Scalia gave senators plenty of time to examine in detail the opinions he wrote as a judge on the U.S. Court of Appeals for the Tenth Circuit and to question him about them. Every imaginable line of inquiry concerning those opinions was taken when he was grilled in the Judiciary Committee hearings — except one. No one asked him about his writing style.
The first thing any reader notices about his opinions (after reading the result, of course) is the style of his opinions. They’re actually readable. He uses contractions like “they’re.” He uses short sentences. He writes so that an intelligent reader not versed in the law can understand what he is saying. He does this without sacrificing legal precision. We understand that Justice Elena Kagan was heard to say, long before the last election, that her stylistic hero was Judge Gorsuch.
Here is the start of his opinion for the court about insurance coverage:
Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.
Western Worlds Ins. v. Markel American Ins., 677 F.3d 1266, 1267 (10th Cir. 2012).
And here is the start of his dissent from the granting of qualified immunity to the defendants:
If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.
A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016).
Style is important and not just for its own sake. A society based on law works only if people know what their legal rights and duties are or at least can find out what they are. Many statutes and other rules are either complex or vague and judges have to try to make sense of them. In deciding specific cases, judges often need to decide what complex or vague rules mean for similar cases. If the public can read an opinion and say, “Aha, now I know what that rule means,” the rule of law is greatly enhanced.
So we have advice for all judges and would-be judges. Justice Gorsuch has issued his first opinion, in Henson v. Santander Consumer USA. Read it carefully for style. And think about imitating it.