By Ken Bresler
Just in time for the U.S. Supreme Court to launch its new term, here are my observations about the court’s legal writing in its flurry of end-of-term cases about abortion, guns and administrative law.
The decision about abortion that overturned Roe v. Wade was bound to use the word “precedent” repeatedly. But the decision in Dobbs v. Jackson Women’s Health Organization was not bound to use two of my favorite related redundancies: “past precedent” and “prior precedent.”
The opinion of the court used “past precedent” and “prior precedent” each twice. The dissenting opinion used “prior precedent” and its variation five times. (Justice Samuel A. Alito Jr. wrote the court’s opinion. The dissenting opinion is jointly ascribed to Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.)
Prior precedent? Past precedent? That’s the only kind of precedent there is. See the “pre” in “precedent.” It means “before,” as you know. Precedents precede.
The dissenting opinion in Dobbs used many short and punchy sentences, some incomplete.
- “Even in the face of public opposition, we uphold the right of individuals — yes, including women — to make their own choices and chart their own futures. Or at least, we did once.”
- “For this reason, we do not understand the majority’s view that our analogy between the right to an abortion and the rights to contraception and same-sex marriage shows that we think ‘[t]he Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.’ To the contrary.”
- “But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did.”
- “Has not the majority insisted for the prior 30 or so pages that the ‘specific practice[ ]’ respecting abortion at the time of the Fourteenth Amendment precludes its recognition as a constitutional right? It has.”
- “Should the audience for these too-much-repeated protestations be duly satisfied? We think not.”
- “… [Planned Parenthood v.] Casey reached the only conclusion possible — that stare decisis operates powerfully here. It still does.”
- “That is about it, as far as we can see. And that is not much.”
- “Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor.”
In addition to short punchy sentences, the dissent wrote phrases that don’t typically appear in court decisions, such as “Scout’s honor.”
- “Mississippi — and other States too — knew exactly what they were doing in ginning up new legal challenges to Roe and Casey.”
- “Texas was one of the fistful of States to have recently banned abortions after six weeks of pregnancy.”
- “The Justices who wrote those words [in Casey] — O’Connor, Kennedy, and Souter —they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.”
That last one might take more than one reading to understand. Sign those justices up for awards? Usually, “sign up” means to “enlist.”
In the New York gun case, Justice Breyer’s dissenting opinion had a verbal tic going: “the extent to which.”
- “The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence.”
Seven pages later, Breyer paraphrased himself:
- “The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes.”
- “[T]he extent to which colonial statutes enacted over 200 years ago were actually enforced … [is] often less than clear.”
Instead of “the extent to which,” the shorter and less stuffy “how much” would have worked.
Justice Kagan continued to be the court’s breeziest writer. She used the trendy “wheelhouse” and “toolbox” in her dissenting opinion in West Virginia v. EPA.
But some of her writing was a bit awkward. In discussing a series of court precedents, she wrote: “The eyebrow-raise is indeed a consistent presence in these cases … .” Um, she meant, “These cases consistently raised eyebrows”?
Kagan’s breeziness approached sharpness at points. In analyzing whether a situation fit the statutory definition of a “system,” she wrote: “Does that sound like a ‘system’ to you? It does to me too.”
- “On EPA’s view of its own authority, the majority worries, some future rule might ‘forc[e] coal plants to “shift” away virtually all of their generation — i.e., to cease making power altogether.’ But looking at the text of Section 111(d) might here come in handy.”
- “It may be helpful here to quote the full sentence that the majority quotes half of.”
- “Whatever else this Court may know about, it does not have a clue about how to address climate change.”
- “Some years ago, I remarked that ‘[w]e’re all textualists now.’ [Citation omitted.] It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
I find “get-out-of-text-free cards” more clunky than clever.
In his concurring opinion in the same case, Justice Neil M. Gorsuch intriguingly used a phrase that has not appeared in any other reported judicial decision — and that does not quite make sense. He wrote, “[T]he Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
Justice Gorsuch used “pen-and-phone regulations” without a citation. One can gain context for the phrase from a 2014 article in the Georgetown Law Journal called “A Pen, a Phone, and the U.S. Code”:
“President Obama started this year with a metaphor: ‘I’ve got a pen, and I’ve got a phone,’ the President said. What he meant is that even without action from Congress, he would use executive orders (the pen) and his convening power (the phone) to get things done. Critics of the Administration described the strategy as one of ‘bypass[ing]’ Congress when Congress fails to act.”
So wrote Lisa Heinzerling, one of several writers in and since 2014 who have discussed the phrase “pen and phone.” But no one, until Justice Gorsuch, has used the phrase “pen-and-phone regulations.” What did he mean?
It is unclear. If a president uses a pen to issue an executive order, that is a regulation. It’s a regulation issued by the White House. And a president using a phone to convene problem-solvers does not constitute issuing a regulation.
What is clear is that Justice Gorsuch was taking a swipe at former President Barack Obama and labeling some regulations as unauthorized by the U.S. Constitution.
But the phrase means more than unauthorized by statute. It connotes illegitimacy. And it has to do with more than regulations, because the “phone” part of “pen-and-phone regulations” refers to conferring with policy makers, not issuing regulations. I define a pen-and-phone regulation as a “regulation or policy unauthorized by statute, or otherwise illegitimate.”
And that’s the definition that appears in my online dictionary (www.ClearWriting.com/dictionary) of terms not in Black’s Law Dictionary. MLW
Ken Bresler tweets about legal writing and new legal terms at @LawWritingCoach.