Judge Gorsuch is a gifted writer. He’s a great writer. But is he a “Great Writer”? Part One: Four gifts
Ever since President Trump nominated Judge Neil Gorsuch for the U.S. Supreme Court, the judge’s writing style has prompted almost as much talk as his presumed views on Roe v. Wade. For Gorsuch’s supporters, many of whom have long lobbied me to tout his gifts, he’s a modern-day Justice Jackson, the Shakespeare of the bench, and the heir apparent to Justice Scalia minus the pointed personal attacks.
One thing is for sure: He will figure in the next edition of my Point Taken!
Unlike, say, Judge Merrick Garland, whose writing is excellent but rather ordinary, Judge Gorsuch appears to strive to be a Great Writer, not just a great opinion writer. Reaching for such heights can bring many benefits, including favorable press, fiercely loyal clerks, and fawning lawyers. But those ambitions also carry risks. As brilliant and talented as Judge Gorsuch is, he sometimes tries just a bit too hard, with results that can be awkward or even jarring.
But let’s start with all that glitters. There’s an awful lot of gold here.
As a writer, Judge Gorsuch has four major gifts:
His knack for crafting engaging narratives
Few judges have Gorsuch’s talent for weaving compelling narrative lines. Take this clever opening from, of all things, an opinion in an insurance dispute:
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.[i]
Judge Gorsuch sounds like the modern incarnation of Lord Denning himself in this opening to his concurrence in Hobby Lobby:
In many ways this case is the tale of two statutes. The ACA compels the Greens to act. RFRA says they need not. We are asked to decide which legislative direction controls. The tie-breaker is found not in our own opinions about good policy but in the laws Congress enacted.[ii]
And he sounds just like Justice Kagan in this opening to a dissent in a case about whether a teenager could be arrested for . . . making fake burps in PE class:
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.[iii]
Somehow Judge Gorsuch even manages to make procedural history come alive. In the tale of a case that never seems to end, he uses the myth of Sisyphus as a metaphor to help the reader feel the judges’ pain. Rarely have I read such a masterly account of civil procedure. Here’s just the start:
We’re beginning to think we have an inkling of Sisyphus’s fate. Courts of law exist to resolve disputes so that both sides might move on with their lives. Yet here we are, forty years in, issuing our seventh opinion in the Ute line and still addressing . . . .[iv]
His ability to engage directly with readers
Judges often tell me that they write directly for the parties or their counsel or the public. I sometimes wonder what that really means in practice. With Judge Gorsuch, at least, you do get the sense that he imagines an actual reader wading through an actual opinion.
Sometimes it’s as simple as addressing the reader in the second person
Take the plaintiff’s burdens first.[v]
Suppose Microsoft had admitted its “real” reasons for withdrawing the NSEs, as Novell says it should have.[vi]
In embracing this underused technique for reader engagement, Judge Gorsuch is right in line with Justice Kagan.
Other times, he poses questions on the reader’s behalf:
Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period. Imagine a boss telling an employee he may either “operate” an office computer as directed or “refuse to operate” that computer. What serious employee would take that as license to use an office computer not for work but to compose the great American novel? Good luck.[vii]
His talent for weaving multilayered opinions
In the pantheon of great opinion writers, every judge offers something extra. The goal post moves beyond “just the disposition, the facts, and the law, ma’am.”[viii] In that respect, Judge Gorsuch is already armed with several “plus factors” that he wields with abandon.
The occasional nod to folk wisdom and metaphor helps:
So if a path to recovery lies anywhere for Novell, it lies through the narrow-eyed needle of refusal to deal doctrine.[ix]
Refusal to deal doctrine’s high water mark came in Aspen.[x]
Effectively pulling out from petitioners like Mr. Gutierrez-Brizuela a rug that the agency itself set under them.[xi]
As do examples and analogies:
No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation.[xii]
Like Justice Scalia, Judge Gorsuch is nothing if not erudite. Many judges cite Charles Dickens’s Bleak House, so I appreciate Gorsuch’s amusing reference to Oliver Twist here:
Often enough the law can be “a ass — a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do.[xiii]
With just a hint of self-congratulation, he even cites Aristotle in a passage about logic:
[I]t is logically irrelevant: the claimant’s rejection of alternatives the government offers doesn’t address the question whether his suggested alternatives suffice to achieve the government’s asserted compelling interest. Cf. Arthur Ernest Davies, A Text-Book of Logic 573 (1915) (“In order to refute an assertion, Aristotle says we must prove its contradictory; the proof, consequently, of a proposition which stood in any other relation than that to the original, would be an ignoratio elenchi.”)[xiv]
Like Judge Posner, but without an explicit law-and-economics lens, Judge Gorsuch also indulges the reader in mini-essays on broader concerns in the law. Agree with him or not, you’ll find Judge Gorsuch at his very best in his blockbuster concurrence questioning the virtues of Chevron deference. Look how he uses his opening lines to suggest that you buckle up for the takedown that’s about to come:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.[xv]
And here, a bit like Justice Ginsburg when she gave “advice” to Congress about the Lilly Ledbetter case, Gorsuch even seems to be nudging the state court to revisit the reasonable expectations doctrine in insurance law:
Of course, few rules lack exceptions. And it’s at least conceivable Oklahoma might someday choose to create an exception to the reasonable expectations doctrine for cases where (arguably as here) both parties to the insurance contract are sophisticated and able to vindicate their interests without any extra help. But no such exception yet exists, Markel has not argued for the adoption of one, and neither is it obvious whether Oklahoma would take up the invitation. After all, when . . . .[xvi]
A confident command over light and varied transitions
Finally, those who have read my books or heard me speak know that I consider transitions the most underrated and misunderstood skill in legal and judicial writing. Gorsuch is in the big leagues (as opposed to “bigly”) here, and I’ll just let a few truncated examples speak for themselves:
But as Novell acknowledges . . . . In fact, the record suggests . . . . To be sure, Novell’s CEO testified that. But Novell’s own expert refused . . . . And Novell’s own theory of monopoly . . . . Perhaps Novell would respond that . . . — but here again Novell presents no evidence to support such a theory. Besides, even assuming . . . . As we’ve seen, Microsoft also produced various applications and, by everyone’s estimation, its withdrawal of the NSEs helped the firm win additional profits in that field. Indeed, Novell’s . . . . Put differently, even if . . . . After all, businesses have the ability . . . .[xvii]
In our constitutional history, after all, judicial declarations . . . . let alone by an executive . . . . Still, in recent years the Supreme Court . . . the agency may indeed exercise delegated . . . . And that development required . . . . Now that curious question has returned, this time with a twist.[xviii]
Of course, since Padilla-Caldera . . . . So, for example, . . . . As a result, an executive agency . . . . But even this doesn’t fully resolve the problem. When the political branches . . . . Admittedly, the legislative . . . . But that’s no bug in the constitutional design . . . . Indeed, the principle of stare decisis was . . . . Yet even as now semi‑tamed . . . .[xix]
Incidentally, I’m not sure I’ve ever known a judge who loves the transitions “To be sure” and “After all” so much!
Bottom line, Gorsuch is indeed great. But he’s not perfect—yet. He has all the ingredients he needs, but he has yet to settle on a consistently confident voice. For more on that, turn to Part Two.
[i] W. World Ins. Co. v. Markel Am. Ins. Co., 677 F.3d 1266 (10th Cir. 2012).
[ii] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (concurring).
[iii] A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016) (dissenting).
[iv] Ute Indian Tribe v. Myton, 835 F.3d 1255 (10th Cir. 2016).
[v] Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).
[vi] Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013).
[vii] TransAm Trucking, Inc. v. Admin. Review Bd., 833 F.3d 1206 (10th Cir. 2016) (dissenting).
[viii] Judges often tell me that it’s enough, or should be enough, “to just be clear and get the law right.” That’s indeed enough if you want to be considered an excellent opinion writer. But of the judges who are known to be extraordinary opinion writers, it’s hard to think of any whose opinions are merely “clear.”
[ix] Novell, supra note 2.
[xi] Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). Note that Judge Gorsuch loves sentence fragments. Maybe too much so.
[xii] Hobby Lobby, supra note 5.
[xiii] A.M., supra note 6. Also note Gorsuch’s respectful, even reverential, tone in addressing his colleagues in dissent. In that sense, at least, he is definitely not Justice Scalia’s heir apparent.
[xiv] Yellowbear, supra note 1.
[xv] Gutierrez-Brizuela, supra note 11.
[xvi] W. World, supra note 4.
[xvii] Novell, supra note 2.
[xviii] Gutierrez-Brizuela, supra note 11.