Judge Gorsuch is a gifted writer. He’s a great writer. But is he a “Great Writer”? Part Two: Five weak spots

Judge Gorsuch might be caught in the political crosshairs right now, but the hagiography of his writing style continues apace. I’ve even joined the Gorsuch-is-great bandwagon myself in a recent post lauding four of his opinion-writing gifts.

What’s more, given the response to my Gorsuch Style Cheat Sheet, many motivated lawyers and judges seem to be wondering how they, too, can write like 2017’s most famous judge.

As I’ve suggested, though, Judge Gorsuch has yet to maximize his exceptional talents. Much of what glitters is gold. But some of his opinion-writing tools could use some sharpening.

Here are five of them.

Time warp

With Judge Gorsuch’s fondness for storytelling, contractions, and one-word sentences, he seems to admire the chatty style of a Kagan or a Scalia. But his breeziness is what makes his occasionally archaic language and stilted syntax all the more jarring.

If you want to join the “big leagues,” so to speak, of Roberts, Scalia, and Kagan, your opinions need to seem easy, not labored. You have to rely on your own voice and a sensitive ear, not try so hard to sound clever or profound.

Gorsuch’s prose does soar when he’s in pure narrative mode. I know that I’m supposed to be criticizing, not praising, in this companion piece, but notice how beautifully the judge’s story line reads here:

A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.[1]

But now read this “legal” passage, keeping in mind that the same judge who spun the seamless tale above also wrote the head-scratcher of a sentence below:

Were intent to harm a competitor alone the marker of antitrust liability, the law would risk retarding consumer welfare by deterring vigorous competition — and wind up punishing only the guileless who haven’t figured out not to write such things down despite (no doubt) the instructions they received in countless “antitrust compliance” seminars.[2]

It’s this sort of strained and stilted syntax that can make his prose veer off course.

Take this misplaced “often”:

The more abstract the level of inquiry, often the better the governmental interest will look.[3]

Or this offbeat “very well”:

Other prisons very well may have compelling reasons to refuse to build sweat lodges given their particular resource limitations and safety challenges.[4]

Or this wayward “as well”:

Without that assistance, without as well some meaningful adversarial engagement on the question, we run a serious risk of reaching . . . .[5]

Other times, the clunk comes from language that is unduly stiff:

Congress made plain that we also lack any license to decide the relative value of a particular exercise to a religion. That job would risk in the attempt not only many mistakes — given our lack of any comparative expertise when it comes to religious teachings . . . .[6]

or archaic:

Reviewing the record for itself after trial, the district court decided it could fairly admit of only one conclusion: Microsoft’s conduct did not offend section 2 of the Sherman Act.[7]

(When I Googled the phrase “admit of only one,” the top hits were all to quotations from the 1800s. Enough said.)

or self-consciously incomplete:

We recently confronted the thorny problem what to do when an executive agency . . . .[8]

or just excessive, as in this one-metaphor-too-many sentence:

And avoiding a slippery slope down to submerged troubles just out of present view, the prison suggests, amounts to a compelling interest all its own.[9]

Object lesson

A fan of the active voice would write “I see Spot.” A purveyor of the passive voice might pen “Spot is seen by me.” Judge Gorsuch, for his part, seems to want to chart a third way: “Spot I see.”

Object-subject-verb. Or maybe not. I’m all for breaking the mold, but there’s a reason few great writers favor this sort of sentence structure:

All of these uncontested statements we must take as true at summary judgment.[10]

All this courts would have to account for and police.[11]

This theory Novell could still pursue because the government’s long-running antitrust case . . . .[12]

That De Niz Robles expressly forbids.[13]

Starting a sentence with a link to your previous thought is often a great idea, but not if it means twisting your sentence into a pretzel.

Neither is “neither”

“Neither” is an acceptable sentence opener, especially for a simple two-sentence combination: “She doesn’t like snow. Neither do I.” But Judge Gorsuch starts so many long sentences with “Neither” that his writing can seem a bit fusty.

In the sentences below, I would recommend following the lead of Chief Justice Roberts and changing every “Neither” to “Nor”:

Neither do we mean to suggest that just because a prison chooses to open a sweat lodge for some prisoners it must forever maintain the lodge or provide unfettered access to it.[14]

Neither do my colleagues offer any reason why a reasonable officer could have thought this same language carried an entirely different meaning when applied to public school burps rather than college sitins — and the parties supply none.[15]

Neither is it insensible[16] to think Congress might wish to protect state taxes even more than its own from federal lawsuits: comity and federalism concerns lurk there, while federal taxes and the lower federal courts are equally creations of Congress itself.[17]

(This use of “insensible” is considered archaic, by the way.)

Neither may we, obliged to apply state law in this diversity action, rightly do anything other than faithfully follow that state policy direction.[18]

Fear not “that”

I’m afraid Judge Gorsuch might be on Team Unfounded Fear of “That.” If the Right has Roe v. Wade and the Left has Citizens United, my own litmus test is whether a judge knows when the word “that” will help, not hurt.

So I’m pleased to report that Justices Kagan, Roberts, and Scalia, like Judge Posner and, dare I say, Judge Garland, are decidedly NOT “that” cutters. Nor is Judge Hardiman, the runner-up for the nomination. Believe me, I checked.

Judge Gorsuch should join the crowd.

Below, for example, I’d trade his too-cute-by-half “(mis)” for a needed “that” after “suggesting”:

This shouldn’t be (mis)taken as suggesting raising rivals’ costs theories play no role in antitrust.[19]

I don’t think Judge Gorsuch really wants us to “imagine Oklahoma”:

And we can just as easily imagine Oklahoma would frown on an exception to its bright line and easily applicable (if overbroad) rule . . . .[20]

The phrase “knowledge anything” doesn’t even make sense without a “that”:

The monopolist might be deterred from investing, innovating, or expanding (or even entering a market in the first place) with the knowledge anything it creates it could be forced to share . . . .[21]

Nor is the Tenth Circuit calling it quits on reassignment:

[W]hile we see no sign of bias in this case, we conclude reassignment of this and all related disputes is required to ensure . . . .[22]

Grammar glitches

Finally, although Judge Gorsuch’s resume is flawless, if not intimidating, his grammar is not.

To make this comparison work, either add a “with” after “Unlike” or move “the Greens” to after the comma:

Unlike Hobby Lobby and Mardel, there can be no colorable question that the Greens are “persons” entitled to RFRA’s protections.[23]

Companies like Novell don’t take “whom”—unless you consider corporations to be people grammatically and not just legally:

Among the [independent software vendors] with whom Microsoft competed during this era was Novell.[24]

And the judge should have shifted things around to avoid these dangling modifiers and participles:

Long since found liable for a rich diversity of antitrust misdeeds in the 1990s, this case calls on us to decide whether Microsoft back then committed still another, as-yet undetected antitrust violation . . . .[25]

Even taken on its own terms, too, I find myself unpersuaded by the argument my colleagues devise for their invocation of Chevron step two.[26]

Doing just that here, it seems to me that the statute is perfectly plain — and plainly doesn’t capture the conduct here — just as TransAm suggests.[27]

Speaking of shifting, for parallelism purposes, “both about” should be “about both”:

For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.[28]

For the same reason, move this “both” to just before “precedent”:

Though it’s long since water over the dam, both as a matter of precedent and preclusion, we might add . . . .[29]

(I’m also not sure about “it’s long since water over the dam.” The only other Google hit for this phrase is, somewhat amusingly, to a snarky blog run by North Carolina Democrats.)

Finally, “in suggesting” should be “to suggest.” And in any event, add a “that”!

But in suggesting we may ask whether a claimant truly holds a religious belief isn’t to suggest we may decide whether . . . .[30]

In the end, the power of Judge Gorsuch’s prose dwarfs any of these weaknesses. Bigly. We’re lucky to have him writing opinions—on whatever bench that may be.

[1] TransAm Trucking, Inc. v. Admin. Review Bd., 833 F.3d 1206 (10th Cir. 2016) (dissenting).

[2] Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013).

[3] Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).

[4] Id.

[5] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (concurring).

[6] Yellowbear, supra note 3.

[7] Novell, supra note 2.

[8] Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). I can accept “the issue whether,” which some lawyers and judges insist on, but I do draw the line at “the problem what to do.” On Google Ngram, which tracks published (and thus edited) books, “the issue of whether” is nine times more common than “the issue whether.” And “the problem of what” is 200 times more common than “the problem what”!

[9] Yellowbear, supra note 3.

[10] Id.

[11] Novell, supra note 2.

[12] Id.

[13] Gutierrez-Brizuela, supra note 8. The cited case name was italicized, not underlined, in the original, but because WordPress italicizes all of my block quotes, I have underlined the name of the case here.

[14] Yellowbear, supra note 3. He starts five more sentences with “Neither” in this opinion: “Neither is,” “Neither must” twice, and “Neither do” two more times as well.

[15] A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016) (dissenting).

[16] This usage of “insensible” is also archaic.

[17] Hobby Lobby, supra note 5.

[18] W. World Ins. Co. v. Markel Am. Ins. Co., 677 F.3d 1266 (10th Cir. 2012).

[19] Novell, supra note 2.

[20] W. World, supra note 17.

[21] Novell, supra note 2.

[22] Ute Indian Tribe v. Myton, 835 F.3d 1255 (10th Cir. 2016).

[23] Hobby Lobby, supra note 5.

[24] Novell, supra note 2. To be fair, some style guides would accept “with whom” here, though my preference would be to drop it altogether and just write “that Microsoft competed with during this era.” Surely Judge Gorsuch doesn’t think that you can’t even end a midsentence phrase with a preposition?

[25] Id.

[26] TransAm Trucking, supra note 1.

[27] Id.

[28] Hobby Lobby, supra note 5.

[29] Ute, supra note 22.

[30] Yellowbear, supra note 3.