Skip The Legalese And Keep It Short, Justices Say While the Supreme Court justices' legal opinions are rarely, if ever, as poetic or vivid as the words of their literary heroes — Proust, Solzhenitsyn and Nabokov, to name a few — the words on the page of every Supreme Court legal opinion have immediate consequences. The justices offer their tips on good legal writing.
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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

Law

Skip The Legalese And Keep It Short, Justices Say

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STEVE INSKEEP, Host:

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."

RUTH BADER GINSBURG: 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.

ANTONIN SCALIA: 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: Would you describe yourself as a word lover?

SCALIA: Not particularly.

GARNER: No?

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.

CLARENCE THOMAS: 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.

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.

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.

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

TOTENBERG: 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.

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: Nina Totenberg, NPR News, Washington.

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