Latest Rap on Gorsuch: He's a Rotten Writer
Neil Gorsuch has his defenders. Still, criticism that his writing is heavy-handed has to sting for a justice who has long been praised for his prose.
January 26, 2018 at 12:00 PM
5 minute read
New U.S. Supreme Court Justice Neil Gorsuch may have expected to be criticized for speaking at the Trump International Hotel and dining with a group of Republican leaders. But the latest complaint is a low blow for a justice who has long been praised for his prose.
“Neil Gorsuch Is a Terrible Writer,” proclaimed Slate magazine in a headline for an article by Mark Joseph Stern that said, among other things, that as a justice “Gorsuch's prose has curdled into a glop of cutesy idioms, pointless metaphors, and garbled diction that's exhausting to read and impossible to take seriously.”
Gorsuch's authorial offense was a dissent he wrote on Jan. 22 in Artis v. District of Columbia, a case about the tolling—or suspending—of statutes of limitation. It was a topic that could benefit from snappy writing to keep readers awake.
But Gorsuch chose to begin his dissent in a snap-free fashion: “Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn't seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”
That's G.K. Chesterton, the oft-quoted British journalist and wordsmith who died in 1936. President John F. Kennedy first used the fence aphorism, paraphrasing what Chesterton had written in 1929. “Chesterton's Fence” has its own Wikipedia page.
University of Michigan Law School professor Nicholas Bagley pounced on Gorsuch's dissent almost instantly, in a tweet: “It's trivial, but here's why Gorsuch's writing style annoys me. He's got a catchy first sentence, and then he stomps on it with a plodding, unnecessary second one. If you're going to call attention to your writing, you've got to be stylish. This ain't that.”
But Gorsuch's writing style also has fans. “Justice Gorsuch writes beautifully—his prose, like that of Justice Kagan, is unusually clear, making it easy for lawyers to understand and possible for even some laypeople to read his opinions,” said veteran advocate Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. “Like the late Justice Scalia and many other great legal writers, he also enjoys throwing in literary references.”
The writing styles of most other new justices have not been given much scrutiny, but expectations were unusually high for Gorsuch. “From his earliest days as a student, Neil Gorsuch—like his legal hero Antonin Scalia—displayed an ability to write well, which he honed,” according to a new biography of the justice by John Greenya.
As a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch was a three-time winner of the prestigious “Exemplary Legal Writing” award bestowed by The Green Bag law review. And his debut opinion Henson v. Santander Consumer USA drew general praise for using clear language, jazzed up with alliteration in its very first sentence: “Disruptive dinnertime calls, downright deceit, and more besides drew Congress's eye to the debt collection industry.”
But Gorsuch also came in for criticism before this week. A year ago Ross Guberman, president of Legal Writing Pro, a consulting and training company, praised Gorsuch as a gifted writer. But Guberman also cautioned, “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.” On Thursday, Guberman said, “Since Gorsuch joined the court, his writing has become as divisive as his views. Fans love his freewheeling prose and distinctive voice, while foes find him smug, self-indulgent, and often just unclear.”
Lisa Tucker, a Supreme Court and legal writing expert at Drexel University Thomas R. Kline School of Law, criticized his “apparent elevation in at least some instances of style over substance,” referring to those who say he “showcases his intellectual prowess though obscure and unexplained references.”
Robbins Russell's Englert shrugs off the criticism of Gorsuch as something of a Rorschach ink blot test: “People who don't like Gorsuch for any other reason see a bad writer.”
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