Judicial Snark

By: Bryan

For my first post, I thought it might be interesting to give you a look behind the curtain of what I do when I edit a case. By and large, my job is to take out the excessive crap that judges recently have begun to put in[1] and leave what matters for legal analysis. When I was first approached to do this, it seemed a bit arrogant to go cutting parts of SCOTUS cases as irrelevant or not helpful to readers. A lot of times, it’s a judgement call – Do I need to keep all 4 precedent cases cited, when 2 communicate the idea just fine? Does it matter what happened in England in 1500 to understanding this case? – but sometimes it’s really easy.

A large part of my job is cutting out judicial sniping, or what I refer to as “cutting judicial slam poetry.” You’ve seen this sort of writing before, I know. It’s the, “The dissent proposes _____, and with all due respect to our learned colleague Justice ______ fundamentally misses the point” (this is always code for “Justice X went to a safety school and knows as much about the law as a dog does about nuclear physics”) and then begins the trash talk. Sometimes this might be helpful if it explains why one test or path was chosen over another. 99% of the time, it’s useless.[2]

The worst legal slam poet is the late Justice Scalia. I would like to show you a paragraph from Veith v. Jubelirer, 541 U.S. 267 (2004). The part I find most egregious begins at 292. First, I’m going to show you what I edited it to for IL, and then I’ll give you the unedited portion. I’ll skip Justice Stevens, who Scalia isn’t as much of a dick to, and instead use his attack on the standard proposed by Justice Souter to illustrate what I mean. Here is the passage edited by me for IL:

Unlike Justice Stevens, however, Justice Souter recognizes that there is no existing workable standard for adjudicating such claims. He proposes a "fresh start,": a newly constructed standard loosely based in form on our Title VII cases, and a five-step prima facie from parts of our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these clues to unconstitutionality could be manageably applied, there is no reason to think they would detect the constitutional crime which Justice Souter is investigating--an "extremity of unfairness" in partisan competition. 

Justice Souter's proposal is doomed to failure for a basic reason: No test can possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled. As we have seen, the Bandemer test sought to specify what that minimal degree was. Justice Souter avoids the difficulties of those formulations by never telling us what his test is looking for, other than "extremity of unfairness."”

Some of the sniping stayed in, but it’s tame and only used to explain that Justice Scalia believes that Justice Souter hasn’t identified a claim or a test to show it. Normal enough.

Here’s what Justice Scalia wrote, without my edits:

Justice Souter, like Justice Stevens, would restrict these plaintiffs,  on the allegations before us, to district-specific political gerrymandering claims.. Unlike Justice Stevens, however, Justice Souter recognizes that there is no existing workable standard for adjudicating such claims. He proposes a "fresh start,": a newly constructed standard loosely based in form on our Title VII cases, see and complete with a five-step prima facie test sewn together from parts of, among other things, our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these self-styled "clues" to unconstitutionality could be manageably applied, which we doubt, there is no reason to think they would detect the constitutional crime which Justice Souter is investigating--an "extremity of unfairness" in partisan competition. 

Under Justice Souter's proposed standard, in order to challenge a particular district, a plaintiff must show (1) that he is a member of a "cohesive political group"; (2) "that the district of his residence . . . paid little or no heed" to traditional districting principles; (3) that there were "specific correlations between the district's deviations from traditional districting principles and the distribution of the population of his group"; (4) that a hypothetical district exists which includes the plaintiff's residence, remedies the packing or cracking of the plaintiff's group, and deviates less from traditional districting principles; and (5) that "the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group." . When those showings have been made, the burden would shift to the defendants to justify the district "by reference to objectives other than naked partisan advantage." 

While this five-part test seems eminently scientific, upon analysis one finds that each of the last four steps requires a quantifying judgment that is unguided and ill suited to the development of judicial standards: How much disregard of traditional districting principles? How many correlations between deviations and distribution? How much remedying of packing or cracking by the hypothetical district? How many legislators must have had the intent to pack and crack--and how efficacious must that intent have been (must it have been, for example, a sine qua non cause of the districting, or a predominant cause)? At step two, for example, Justice Souter would require lower courts to assess whether mapmakers paid "little or no heed to . . . traditional districting principles." What is a lower court to do when, as will often be the case, the district adheres to some traditional criteria but not others? Justice Souter's only response to this question is to evade it: "It is not necessary now to say exactly how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case." But the devil lurks precisely in such detail. The central problem is determining when political gerrymandering has gone too far. It does not solve that problem to break down the original unanswerable question (How much political motivation and effect is too much?) into four more discrete but equally unanswerable questions.

Justice Souter's proposal is doomed to failure for a more basic reason: No test--yea, not even a five-part test--can possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled. As we have seen, the Bandemer test sought (unhelpfully, but at least gamely) to specify what that minimal degree was: "[a] chance to effectively influence the political process." So did the appellants' proposed test: "[the] ability to translate a majority of votes into a majority of seats." Brief for Appellants 20. Justice Souter avoids the difficulties of those formulations by never telling us what his test is looking for, other than the utterly unhelpful "extremity of unfairness." He vaguely describes the harm he is concerned with as vote dilution, a term which usually implies some actual effect on the weight of a vote. But no element of his test looks to the effect of the gerrymander on the electoral success, the electoral opportunity, or even the political influence, of the plaintiff group. We do not know the precise constitutional deprivation his test is designed to identify and prevent.

Even if (though it is implausible) Justice Souter believes that the constitutional deprivation consists of merely "vote dilution," his test would not even identify that effect. Despite his claimed reliance on the McDonnell Douglas framework, Justice Souter would allow the plaintiff no opportunity to show that the mapmakers' compliance with traditional districting factors is pretextual. His reason for this is never stated, but it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution. As we have explained above, packing and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines. An even better example is the traditional criterion of incumbency protection. Justice Souter has previously acknowledged it to be a traditional and constitutionally acceptable districting principle. Since that is so, his test would not protect those who are packed, and often tightly so, to ensure the reelection of representatives of either party. Indeed, efforts to maximize partisan representation statewide might well begin with packing voters of the opposing party into the districts of existing incumbents of that party. By this means an incumbent is protected,   potential adversary to the districting mollified, and votes of the opposing party are diluted.

Like us, Justice Souter acknowledges and accepts that "some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent."  Thus, again like us, he recognizes that "the issue is one of how much is too much." Ibid. And once those premises are conceded, the only line that can be drawn must be based, as Justice Souter again candidly admits, upon a substantive "notio[n] of fairness." Ibid. This is the same flabby goal that deprived Justice Powell's test of all determinacy. To be sure, Justice Souter frames it somewhat differently: Courts must intervene, he says, when "partisan competition has reached an extremity of unfairness."  We do not think the problem is solved by adding the modifier.[3]

Every rhetorical device your legal writing professor told you not to use is in there. There’s inaccurately summarizing the point of your opponent[4] to make a strawman. There’s air quotes. There’s parenthetical snark. There are unnecessary asides to the reader. There are even rhetorical questions to the reader put in parentheticals. And throughout there is characterization of an opponent using smarm and condescension. Most of the slamming comes in the descriptors of what Scalia uses to characterize an opinion he disagrees with. Souter is always “vague.” His test “is unguided and ill-suited to developing a judicial standard.” His test is “stitched together.” He is looking for “self-styled ‘clues.’” And there is always an air of confusion: “we do not know what he is trying to do” is a common comment. There are a ton of italicized emphasis words, and the asides to the reader are omni-present. The section ends by saying “we do not think the problem is solved by adding a modifier,” itself a gross simplification that takes 12 pages of explanation and reduces it to a single word.

I took the Souter portion, but Scalia trashes every single person who doesn’t sign onto his plurality opinion; every single one.[5] It goes on for 13 pages, which is longer than Souter’s dissent. I will fully admit to not liking Justice Scalia is a writer, thinker, or person, but to hector the justices who wouldn’t give you the votes for a majority opinion for 13 of 43 pages is indulgent to the point of vanity. It’s also worth noting that his actual affirmative case for his view involves literal pages of just dumping on the case they are overturning and anyone who ever thought it was well reasoned.[6]

None of this actually clarifies the law. You know this. You’ve been taught this by professors and decent legal writers. If you turned in a brief like this to your professor, you’d get a B and be told to stop being a dick. Yet, this is a large part of modern constitutional law opinions. It’s also a good chunk of what I cut out when I edit them for you.

Many of Scalia’s most verbose slam poetry is in dissents and opinions where he writes a plurality rather than a majority as he does here. My suspicion - though I have no proof other than what I can glean from the cases - is that possible majorities became pluralities because justices like Kennedy, who even for all his rhetorical excesses never engages in actively dumping on his colleagues, don’t want to put their names on what is basically just being mean.

I am generally of the belief that a good argument doesn’t require shitting on the opposing argument to demonstrate its strength. I LOVE bashing arguments I think are bad, mostly because I think bad arguments should be mocked. Also, it’s fun for me. That’s essentially what this blog post is, but I would never say that bashing a bad argument is a substitute for proving your own. If you ever read full opinions (and you should, when it’s something you find interesting rather than something you need to cram in your head for a test), take note of when the justices wander into the realm of snark, smarm, and shitting on their critics. You’ll generally be at a point where their own argument is at its most flimsy.

Agree? Disagree? Please let me know your thoughts on the comments section below.



[1]  I say “recently” because most older cases are shorter, though there is some ridiculous filler in early cases. For instance, the first paragraph or two of every case written by the early Supreme Court talks about how important what they’re doing is. If you hate yourself enough to want a taste, check out Chisholm v. Georgia, 2 U.S. 419(1793) or Martin v. Hunter’s Lesse, 14 U.S. 304 (1816)

[2] You probably expected me to cite to some sort of study, I have not, I’m overstating for rhetorical effect. This isn’t a law review article. Though my time editing law review is screaming at me that a proposition that strong requires textual support.

[3] Vieth v. Jubelirer, 541 U.S. 267, 295 – 299(2004)(internal citations omitted)

[4] If you’d like to read Souter’s dissenting opinion and judge for yourself in Scalia is being unfair with how he summarizes the proposed standard and test, See Veith 541 U.S. at 343 – 355 (Souter, J., Dissenting)

[5] Id. at 292 – 305

[6] A representative sample, cut from the IL opinion because I don’t hate our readers as much as Scalia hated binding precedent he didn’t agree with can be found on page 281 “To think that this lower-court jurisprudence has brought forth ‘judicially discernible and manageable standards’ would be fantasy. Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists.” Id. at 281. He then goes on to browbeat Justice White for 2 pages.