It's OK to Laugh at the Supreme Court
Reading Justice Elena Kagan’s breezy, colloquial, witty dissent in Lockhart v. U.S., the grammar case handed down Tuesday, wasn’t like reading an ordinary Supreme Court opinion -- because it was breezy, colloquial and witty. Spurred by the competition, Justice Sonia Sotomayor, writing for the majority (which is much harder), tried out a few colloquialisms herself.
Something new is afoot at the court, and Kagan is at the forefront of it. In the era of fan-girl books about the court, like “The Notorious RBG,” humor is becoming a permissible mode of judicial expression.
Justice Antonin Scalia paved the way, especially in his last years on the court. His humor (in writing) was usually biting, and his colloquialisms were usually chosen to be a bit outrageous -- think “legal argle-bargle.” Kagan’s style is gentler, although she’s also capable of using colloquialism in a serious cause like the separation of church and state.
In contrast, the few great writers in the history of the Supreme Court were intensely readable, but not especially funny. Justice Oliver Wendell Holmes could be arch, but his most memorable phrases were meant to be slashing and occasionally grand, not funny. Justice Robert Jackson wrote clean sentences and carved out metaphors packed with legal impact. But he had no sense of humor.
Where did this new trend come from? No one to my knowledge has done a serious study of the topic. But my hypothesis is that it has to do with journalism about the court, and the breakdown of the cultural line between high style and low in the age of the Internet.
My story begins with the writer Dahlia Lithwick of Slate. Lithwick went to Yale University and then to Stanford Law School, followed by a clerkship on the U.S. Court of Appeals for the 9th Circuit. By credentials and training, she was marked as a member of the rather staid U.S. legal elite.
But when Lithwick (whom I now know and who once interviewed me) started writing for Slate, she did something very different: She wrote funny. I can’t remember a specific article, but I vividly recall reading her work in the early 2000s and thinking: Who is she kidding? The Supreme Court is serious business! You can’t engage the court or the issues before it in a tone of irreverent observation! Who does she think the justices are, human beings?
When Lithwick started writing this way, she was basically alone. Supreme Court journalism was dominated by Linda Greenhouse of the New York Times, who’d followed in the footsteps of the sainted Anthony Lewis; Joan Biskupic, then of USA Today; and Tony Mauro, then of the Legal Times. On radio there was Nina Totenberg of NPR.
These journalists all covered the court with an air of high seriousness. They explained the issues and summarized the decisions. Law professors and legal professionals paid them no mind at all, so far as I could tell as a young law professor and lawyer. The writers were perceived as civilians in a world that could be understood only by veterans, preferably veterans of the special forces, which meant former Supreme Court clerks. The press could explain the courts to the public, but the journalists and the public alike were assumed not to get the nuances or the complexities.
Lithwick was both a better lawyer and a more entertaining writer -- but somehow her approach seemed unserious. She was soon joined by David Lat, a graduate of Yale Law School who had also served in a 9th Circuit clerkship. Lat had the genius to begin his literary career anonymously, in the persona of “Article III groupie” or A3G, an ambiguously sexed fan who reveled in a camp combination of doctrinal sophistication and judicial pseudo-gossip. Today, Lat runs the Above the Law empire, which has done much to institutionalize the serious-camp combination that Lithwick originated. Scotusblog came later to the fight, but it too seeks to explain opinions in “ordinary English” and with occasional flashes of humor.
Within a decade, the transgressive nature of Lithwick’s style had become normative. The Internet had made high seriousness obsolete. The Supreme Court was now a story like any other. Indeed, the seriousness of the subject called for the leavening of light humor.
Once shocked by the form, I found myself gradually experimenting with it. If I could explain cases, make arguments of my own and be vaguely readable at the same time, then I thought I was providing a service for whoever bothered to look. I’d become a Lithwickian, almost despite myself.
As it turns out, I wasn’t alone. Scalia may not have read these sources, but it’s in the nature of literary style to affect those who are merely in the milieu. His writing got funnier and more pointed because he was competing for attention -- and trying to get headlines.
Kagan represents a fuller realization of the influence of the contemporary court literary style on the justices themselves. Her Lockhart opinion could almost have been a post on Scotusblog or a column in Slate or Bloomberg View. Reading it, you knew she was having fun -- and you were allowed to join in. Being on the Supreme Court, it turns out, may be just as much fun as writing about it.
e.g., Missouri v. Holland: “It was enough for [the framers] to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience not merely what was said a hundred years ago.” Take that, originalism!
In reference to Japanese internment, in Korematsu v. U.S.: “The Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
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Noah Feldman at firstname.lastname@example.org
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Stacey Shick at email@example.com