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Skip The Legalese And Keep It Short, Justices Say

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Skip The Legalese And Keep It Short, Justices Say


Skip The Legalese And Keep It Short, Justices Say

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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A series of interviews has lifted some of the mysteries surrounding the work of the United States Supreme Court. In these interviews conducted in 2007, eight justices discussed their different approaches to the jobs, especially writing. Most of the court's work is writing. It's the justices' words on the page that become the law of the land, or interpret that law. Transcripts of the interviews are now available online, and NPR Legal Correspondent Nina Totenberg says they show some of the justices in a revealing light.

NINA TOTENBERG: As Chief Justice John Roberts puts it: the only good way to learn about writing is to read good writing. And it turns out that many of the justices take their inspiration from great literature. Justice Stephen Breyer likes Proust, Stendahl, and Montesquieu. Justice Anthony Kennedy loves Hemingway, Shakespeare, Solzenitsn, Dickens, and Trollpe. Justice Clarence Thomas says a good legal brief reminds him of the TV show "24," and Justice Ruth Bader Ginsburg says one of the great influences on her writing was her European literature professor at Cornell, Vladimir Nabokov, yes, the same Nabokov who later rocked the literary world with his widely acclaimed novel "Lolita."

Justice RUTH BADER GINSBURG (Supreme Court Justice): He was a man who was in love with the sound of words. So he changed the way I read, the way I write.

TOTENBERG: Many of the justices admit to pet peeves. Justice Kennedy hates adverbs and nouns that are converted to verbs, incentivize, for example. Justice Scalia readily admits to being a snoot.

Justice ANTONIN SCALIA (Supreme Court Justice): Snoots are those who are nitpickers for the mot juste, for using a word precisely the way it should be used, not dulling it by misuse, meaning I'm a snoot.

TOTENBERG: That contrasts with Justice Clarence Thomas, as exemplified in this exchange with interviewer Brian Garner. .TTEXT: Mr. BRIAN GARNER (Interviewer): Would you describe yourself as a word lover?

Justice SCALIA: Not particularly.


Justice SCALIA: I like buses, and football and cars.

TOTENBERG: Thomas noted that he was raised speaking a dialect called geechee and wasn't comfortable speaking standard English until he was in his 20s. The justices each approach their work at the court quite differently. Justice Thomas hasn't asked a question at oral argument in more than five years. He doesn't like the fast pace of questions to counsel, viewing it as unnecessarily intense.

Justice CLARENCE THOMAS (Supreme Court Justice): I don't like the back and forth and I've been very clear about that, and I won't participate.

TOTENBERG: As a lawyer, said Thomas, most of the appellate arguments he made had been without interruption, and he liked it that way. But Justice Scalia loves the combat of questioning, and did as a lawyer too. When he was a justice department lawyer, he recalled a Supreme Court argument in which he got only two questions.

Justice SCALIA: It was awful. I'm like c'mon you guys, give me a hand here. What can... How can I help you? What are you concerned about. I think good counsel welcomes questions.

TOTENBERG: Indeed, while some justices - Alito and Thomas, for instance - have said they view oral argument as relatively unimportant. Others, like Kennedy and Breyer, would like more time to hear the oral presentations and ask questions. Kennedy so loves the give and take of oral argument that at one law school moot court, where he served as a judge, he actually got down off the bench, gave the student advocate his robe, and put on the kid's suit jacket.

Justice ANTHONY KENNEDY: And I put him up on the bench, and I said, now here's how you should answer that question. I just couldn't stand it any longer. Now many judges who have been trial lawyers feel that way. We wish we were down there.

TOTENBERG: But Chief Justice Roberts, who for years was among the finest Supreme Court advocates, concedes that asking questions as a justice is a lot less nerve racking than answering questions as a lawyer.

Justice JOHN ROBERTS (Supreme Court Justice): Because you can ask stupid questions. It's a lot less harmful than giving stupid answers.

TOTENBERG: As to the task of actually writing Court opinions, each justice seems to approach it a bit differently. All talk about the need for clarity, for simplicity of language where possible, so that the lower courts will have clear guidelines to follow. In addition, they all see the need to explain to the public, at large, what a case is about and why it is important.

Some justices, like Ginsburg or the retired Justice John Paul Stevens, find it easier to write a first draft, and then let their law clerks have a go at it. Others, like Scalia, let the law clerks write the first draft, and then the justice rewrites, edits, and refines. Thomas says he never even sees a draft until it has been through three aggressive rewrites by his law clerks.

Chief Justice Roberts relates a telling story from his 1981 clerkship, for then Justice William Rehnquist. Upon reviewing Roberts' draft, Rehnquist circled vast amounts of the Roberts' effort, and instructed him to put that material in the footnotes.

Justice ROBERTS: So I went back and gave him a draft with all that stuff in footnotes, and he looked at it and said, fine, he said, now cut out all the footnotes.

TOTENBERG: Message to law clerk: it can always be shorter.

Nina Totenberg, NPR News, Washington.

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