What Makes for “Brilliant” Writing?
156 prominent lawyers, including Democratic stalwarts Seth Waxman and Lloyd
Cutler, once signed a letter attesting to John Roberts’s reputation as a
“brilliant writer.”
Thanks to Roberts’s recent confirmation, many people now know about the
letter. But what is it that makes Roberts’s writing so brilliant?
Over the next several months, I’ll try to answer that question by citing some
of Roberts’s briefs and opinions.
Smith v. Doe
Consider this pivotal section in a brief that Roberts wrote for Alaska in
Smith v. Doe. Roberts wanted the Supreme Court to uphold Alaska’s “Megan’s Law,”
which requires sex offenders to register with the State after they have been
released from prison.
In this section, Roberts persuades the Court by building his argument around
the law, not cases. Each paragraph begins by stating what the law is rather than
how it developed. Each of Roberts’s points also flows logically from one to the
next.
Take a look at the first sentence or two from the following four
paragraphs:
The Ninth Circuit also found that the Department of Public Safety’s
practice of posting its sex offender registry on the Internet imposed a
“substantial” and “burdensome” “affirmative disability or restraint” on
registrants, because it exposed them to widespread “community obloquy and scorn
that damage them personally and professionally.” But the posting of the registry
on the Internet imposes no affirmative disability or restraint at all on a
registrant, and certainly nothing akin to the “‘infamous punishment’ of
imprisonment.”
* * *
Information about criminal records is routinely made available to the
public; indeed, criminal trials must be open to the public. Yet even though that
information has always had the potential for negative collateral consequences as
a result of the actions of those who learn it, making the information available
to the public has never been considered additional “punishment” for the crime
itself.
* * *
Nor, moreover, is passive notification on the Internet as invasive as
other active steps States may take to notify communities of the presence of sex
offenders.
* * *
Alaska’s scheme of Internet notification—shared by some thirty other
States—thus does not impose an “affirmative disability or restraint” on Alaska
registrants even remotely akin to imprisonment or confinement; it is today
simply the most expedient method of conveying information to members of the
public who are interested in that information.
One thing that strikes me about Roberts’s briefs is that his argument, and
not case law, always controls his structure. In structuring these four
paragraphs, Roberts sticks to a simple point that he proves step by step:
posting a sex offender’s status on the Internet is no more disabling or punitive
than publicizing a sex offender’s crimes during a criminal trial.
So is Roberts’s tightly disciplined structure “brilliant” in itself? Perhaps
not. Is it rare? Absolutely.
Roberts and Alaska won this case, by the way; the Supreme Court ruled 6-3 in
their favor.
