Supreme Court Justices’ Writing Tips …

How To Write Supreme Court Decisions In Favor of “We The People” Corporations

“How To Write Supreme Court Decisions In Favor of ‘We The People’ Corporations” is the GS’s response to hearing NPR’s Morning Edition (to which the GS does a promo before he leaves the air) at 3:00 am  (6/13). It was the story-segment about the new “Writing Tips from the Supreme Court Justices.” The GS, fancying himself as a kind of amateur writer (of “radio-text”), can’t wait to get some of these writing tips from such an august and sagacious body of our government—G-d knows he’s always trying to improve his writing (but is too lazy to actually study the super-thick Chicago Manual of Style)!

So driving home from the radio station, the GS hears the lead-in to this story—it’s about words on the page; something magical about words on the page: “Most of the U.S. Supreme Court’s work is in writing. The words on the page become the law of the land ….” Oh yeah, the passion for the word-on-the-page—I can’t resist! (Maybe even the music that’s resonating there to be found! “Rave-on John Donne / rave-on words on printed page / rave-on, rave-on, rave-on Mr. Yeats / rave-on, rave-on, rave-on….” A Van song and the “Rave-On Through the Night” title for the informational program the GS used to have on KUSP, 2 -5 am, before the program restructuring of 2008.)

Gee, the GS was surprised to hear that he had this literary passion in common with the Supreme Court Justices, even Scalia! (“Justice Thomas says a good legal brief reminds him of the TV show 24.” “Some justices, like Ginsburg or the retired Justice John Paul Stevens, find it easier to write a first draft and then let their law clerks have a go at it. Others, like Scalia, let the law clerks write the first draft, and then the justice rewrites, edits and refines.”)

As an old Lit. major, the GS is anxious about what he might glean from their legal “Opinions,” because these are justices who “refer to great fiction writers as masters of language,” and who admire and are inspired by such writers as “Proust, Stendhal and Montesquieu . . . Hemingway, Shakespeare, Solzhenitsyn, Dickens and Trollope.” (To her credit, Justice Ruth Bader Ginsburg admits that Vladimir Nabokov, her European literature professor at Cornell and author of Lolita, was one of the great influences on her writing. Ah, how racy for a Supreme Court Justice!)

Oh, the GS can’t wait to find out the Justices’ “Opinion” on, say, Dickens or Hemingway. (As a writer, Dickens developed an interest in social reform and began contributing to the True Sun, a radical newspaper. Although his main avenue of work would consist of writing novels, Dickens continued his journalistic work until the end of his life.) For the GS, the American writer Hemingway would be the most interesting to hear ruled upon. How about his anti-war writings?  I mean, aside from his general anti-war attitude, his special allegiance to the anti-Franco forces when civil war broke out in Spain: “Hemingway first encountered fascism in the 1920s when he interviewed Benito Mussolini …” (whom, as a journalist-reporter, he called “the biggest bluff in Europe”). Oh my, the “F”-word has popped up! (“F”—as in Fascism). Surely this should be of considerable interest to, say, justices like Anthony Scalia, right? The GS would bet there are some good writing tips here! (Would he give an opinion on Hemingway’s legendary understatement writing style when he called Mussolini “the biggest bluff in Europe,” or would he overrule Robert Jordan’s explanation of the threat of Fascism in his own country in For Whom the Bell Tolls?)

(Which makes the GS wonder if any of the Supreme Court Justices have any good writing tips about how to communicate sarcasm or irony, which are sometimes not easy to detect on the page. The GS just checked the Chicago Manual of Style for making such more explicit, and although he found no entry for “sarcasm” he found one on “irony” and one on “emphasis:” “Words used in an ironic sense may be enclosed in quotation marks.” “A word or phrase may be set in italic type for emphasis if the emphasis might otherwise be lost.”  So let me edit my above writing accordingly: how about his anti-war writings? “Fascism.” Surely this should be of considerable interest to, say, justices like Anthony Scalia, right? I’ll bet there are some “good tips” there!)

All this talk about the Supreme Court Justices and literature makes the GS ask this question: Have you ever thought of the “legal brief” as a kind of literature? It makes the GS think about the entire subject of “literature and the law.” It is, after all, all about textual interpretation (in the field of jurisprudence, the controversial problem of how to interpret the Constitution); the hermeneutics of literature and law and (thinking of the GS’s trade) maybe music. Due to contemporary, postmodern literary theory, legal theorists have been turning to literary theory for potential insight into the interpretation of the law:

In this chapter I will suggest that we will get a clearer insight into some recalcitrant problems of literary and legal interpretation if we face up to the need for counterfactuals in interpreting texts. Counterfactual conditionals are if-then statements, as in the song “If I were a rich man,” or in the claim of the young lad from Hahant: “If I would if I could but I can’t.” These contrary-to-fact speculations are just the sorts of statements that tough-minded thinkers and skeptical historians try to avoid.” –Levinson and Mailloux, Interpreting Law & Literature: A Hermeneutic Reader, 1988. [My Emphasis]

Not wanting to avoid these “contrary-to-fact” speculations (which not only “tough-minded thinkers and skeptical historians try to avoid,” but also NPR reporters), the GS wants to ask: If the Supreme Court Justices are interpreters of the founding text of our nation, the Constitution, then are they not terrible legal literary critics? Therefore, reflecting back on recent, landmark Supreme Court decisions, the GS has decided that he’s not interested in any damn “writing tips” from this august body of justices. These Supreme Court Justices have sworn to overcome their biases and render fair and impartial rulings on the law. In this case, what is a grammatical or stylistic error in writing legal opinions compared to an ideological one—an anti-democratic one? (And the ultra-conservative base for the “Opinions” for the majority of this Supreme Court decries liberal activist judges “legislating from the bench”! Again, the GS turns to the Chicago Manual of Style to get further help in making irony more explicit on the page.) Of course, the GS recognizes that there are those for whom nothing is more satisfying in style than well-wrought expository prose arguing for a totalitarian law!

Now, the GS admits he can be accused of unfairly judging all the Supreme Court Justices. But the GS is really only judging the majority—as in the most recent majority opinions passed down from on high that have grave consequences for our democratic system. Lest some of us who admire good writing forget, these are the same black-robed bunch who (1) in Bush v. Gore, 531 U.S. 98 (2000) decided the 2000 presidential election in favor of George W. Bush (which prompted dissent from Justice Stephen Breyer: “We do risk a self-inflicted wound—a wound that may harm not just the court, but the nation.”) and who (2) in January of 2010 ruled to wipe away limits on corporate and labor union spending in campaigns for president and Congress, thereby reversing 20 years of restrictions on corporate campaign contributions. And let’s not forget Supreme Court Justice Samuel Alito’s outrageous behavior at president Obama’s State of the Union address (January 28, 2010). Alito made a dismissive face, shook his head repeatedly and appeared to mouth the words “not true” when Obama publicly scolded the high court (“. . . reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”).

Fascism—now that’s a word that belongs on a page, a page of recent American judicial history. Since the GS has used the “F”-word in relation to the Supreme Court Justices, which may cause some readers to balk, feeling that he’s throwing this word around loosely, he’s obliged to justify it. The GS could spend a page of writing to make the necessary connections between the unrestrained power of corporations and political totalitarianism, or he could save time by simply turning to none other than Hemingway’s Mussolini, who idealized the Corporate State. He defined “fascism” thusly:  “Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.” (See Benito Mussolini, Stato Corporativo [The Corporate State], 1938, New York: H. Fertig, 1975.)

The GS doesn’t want to make a Federal Case out of this, but being familiar with all the writers listed in Morning Edition’s report he strongly suspects that none of them would feel comfortable with the make-up of this current right-wing Supreme Court and, thus, would object to being eulogized by them. To quote Adam Liptak (7/24/10), The New York Times Supreme Court correspondent, the Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is “the most conservative one in recent memory.”

However, here’s the kicker—if you really want to get technical about it, it’s actually not just the ideological nature of their recent decisions that one can find fault with. Guess what else? It’s ironic! Yeah, whatever NPR reports, these masters of writing have been taken to task for their writing! In November of 2010 Liptak wrote that the Roberts court is not only the most conservative but also one of the most unwieldy in terms of its writing. In fact, the high court set a record last term for the median length of its decisions: “They’re writing very long. And they’re also written in this kind of institutional style where it’s hard to tell what the rule being proposed for lower court judges to follow is.” This is an argument for clarity. Liptak says there are several reasons for the lack of clarity in the court’s writing.

Therefore, the GS would suggest that a fascist Supreme Court “Opinion” is still fascist, whether or not it’s “good writing.” In the GS’s book, nothing could be any clearer than that—case closed! (Anyone for a NPR story entitled “The Supreme Court Justices’ Writing Tips … the Scales of Justice Towards Fascism”?) So, in closing my brief,  here’s the GS’s amateur “opinion” on the matter: For our “democratic” country, under the recent anti-democratic rulings of this Supreme Court, the warning of the “the threat of Fascism”—that it can happen here—is as clear as the clarity a great writer like Hemingway—through John Donne—brought to general awareness.

Each mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee…. 

I don’t know about you, but the GS loves these words on a page—Rave-on, rave-on John Donne!

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