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Thursday, November 17, 2022

The Performative Judicial Opinion Style

Today Mark Walker, Chief Judge of the United States District Court for the Northern District of Florida, granted a preliminary injunction blocking enforcement of Florida's awful "Stop WOKE Act." The opinion is over 100 pages long, putting one in mind of the old saying, attributed to a number of people, "I would have written you a shorter letter, but I didn't have the time." Given its length I haven't had a chance to read it properly. Howard is welcome to it. I wanted to use it to say something about style in judicial opinions.

From the very outset of the opinion, I was put in mind of Richard Posner's excellent 1995 piece on judicial opinion writing style. In that piece Posner contrasts the "pure" opinion style, which he characterizes as having a "lofty, formal, imperious, impersonal, 'refined,' ostentatiously 'correct' (including 'politically correct'), even hieratic tone," with the "impure" style, which "tend[s] to be more direct, forthright, 'man to man,' colloquial, informal, frank, even racy, even demotic." Posner, of course, prefers the impure style and, at his best, was a master at it. He goes on to argue that the pure and impure styles map, roughly, on to different "jurisprudential stances:" respectively, the formalist and the pragmatic. But he acknowledges that the fit is imperfect and that the writing styles lie on a spectrum, rarely appearing in anything like a clear undiluted form. And he acknowledges that the impure style has its risks. It can easily curdle into something different and worse: 

In repeatedly complaining about the impersonality of the pure style, I run the risk of seeming to endorse the very emotionality, sentimentality, and egoism that was characteristic of much Romantic and Victorian poetry and that T.S. Eliot and other modernists denounced. The arch-sentimentalist, and some might even say the arch-egoist, of the American judiciary is the recently retired Justice Blackmun. Blackmun did not try to disguise or discipline the strong feelings that many of the Court's cases aroused in him; he seemed (not only in his opinions but also in his public comments about the Court) to have insisted on “letting it all hang out.” Although his opinions in these cases depart from the professional norms that I am associating with the “pure” style and are certainly not lacking in “voice,” the departure is not in the direction of the school of Donne or Eliot. The “voice” is rather that of Joyce Kilmer or Norman Rockwell. Whatever the merit of Blackmun's positions on such matters as abortion, capital punishment, sexual equality, the exemption of baseball from the antitrust laws, or the duty of states to protect people from private violence, the opinions in which he expressed his heartfelt views on these subjects are embarrassing performances precisely because they seem the unmediated expression of self. They are maudlin (DeShaney), melodramatic (Webster), unreasoned (Roe, Callins), narcissistic (Casey), sophomoric (Roe's history of abortion from ancient Persia on and the ode to baseball in Flood v Kuhn), and gratuitously indecorous (Michael M.).

I would say three things about Posner's taxonomy. The first is that time has perhaps been unkind to his effort to link the pure style to formalism and the impure to pragmatism. Or perhaps he was right at the time but things have changed. In any event, impurity is the order of the day on the Supreme Court and elsewhere. I think that change is mostly to the good, although I find that many of those informal opinions in some places easily fall from the conversational and memorable into the chatty and cute. It is good that judges are writing more directly, but not so good that the federal courts have used the glibly humorous phrase "But wait, there's more" 31 times in their opinions, all of which started appearing in 1996 (a year after Posner's article was published) and mostly in the past dozen years or so. (In an illustration of the point that pure and impure get mixed, note that on nine of those occasions, the judge chose the worst of all possible versions of the phrase: "But wait, there is more.") But the impure style is now as likely to appear in formalist opinions as in non-formalist opinions. I haven't searched the literature closely but I suspect some updating work is needed on this point and that the results would be interesting.  

The second is that it seems to me that the narcissistic opinion--the emotional, sentimental, often egoistic, undisciplined opinion--occupies a larger space than Posner assigned to it and fits awkwardly into the pure/impure division. Indeed, like the saying that Washington is a city with Southern efficiency and Northern charm, this sort of opinion is often notable for selecting unerringly from the worst of the pure style and the worst of the impure style and combining them. Although Posner's language strikes for the jugular here, I'm also not sure it's quite right. Or, if he is, it might be that more can be said about styles of opinion that are closely related to and adjacent to the narcissistic style.

We might imagine a new category: the performative judicial opinion. I mean performative not in J.L. Austin's sense of "performative utterances," but in the colloquial sense in which it is often used these days: speech that carries the air of having been undertaken more to "increase one's social capital" than "because of one's devotion to a cause." It is, of course, the kind of speech that is so very common on social media and has gone on to infect any number of other speech institutions, such as newspapers, as well. (What is an ad slogan like "Democracy dies in darkness"--which is quoted in Judge Walker's opinion--if not performative speech, especially once people treat it as anything other than what it was in the first place: a calculated marketing effort?)  

The performative judicial opinion maps considerably onto the narcissistic opinion--and there is certainly an enormous amount of narcissism in "performative speech"--but is not an exact match for it. The voice is not that of Kilmer or Rockwell, but that of the kind of poorly edited, overheated speech a self-smitten politician or activist of whatever political stripe might deliver to an overly receptive, easily impressed audience. It's not the speech of Twitter, but the kind of speech one might anticipate being well-received by people on Twitter. It reads as if the author hopes it will be puffed and passed along by a credulous mediocre journalist of the corresponding political persuasion: a mash note on Slate, or on The Federalist. But like the narcissistic opinion, it is regularly characterized by the maudlin, the melodramatic, the sophomoric, the gratuitous, the indecorous. 

It also seems very popular to me. Perhaps that's because it's the kind of opinion that's most likely to appeal to the kinds of credulous, partisan, or unserious writers who are then eager to broadcast it to all and sundry, while more workaday opinions go unnoticed and certainly unquoted. But that suggests a one-sided relationship, and I think the symbiosis is coming from both sides and that no shortage of judges are happy these days to engage in precisely this kind of intentional but fundamentally undisciplined opinion writing. Perhaps it has something to do with broader changing standards of speech and behavior--and perhaps those standards are not just changed, but fallen or degraded. One would like to attribute it to a particular appointing president. Surely, if anyone would be inclined to set loose on the world writers of narcissistic and undisciplined judicial opinions, it would have been President Trump. But I don't think that's the case. Polarization and culture wars, as well as the appearance of culture-war issues on the judicial docket (or the turning of issues into culture-war matters) have certainly contributed to its popularity for writers at both poles. What else could one call Judge Oldham's concurring opinion in the en banc Fifth Circuit in this Term's Cochran v. SEC case if not undisciplined, gratuitous, sophomoric--performative? On the other side of the culture wars, what else could one call the Georgia trial court opinion that Howard writes about below? Both call desperately for attention, not just substantively but stylistically--and get it.  

People (including me, no doubt) tend to applaud dreck--speeches, slogans, cheap appeals to sentiment, and so on--when it appeals strongly to their priors, or at least let it pass without focusing on and critiquing the style used. What could be more eloquent and beautiful to one's eyes than someone agreeing with one's deepest feelings or views? And they are happy to excoriate it when it comes from the opposite side, because it is easier to spot in those circumstances. But I would like to see more examination of the performative judicial opinion as a style. There is much to be said about it. That's true not just from the stylistic perspective but for whatever insights an examination of the performative and/or narcissistic opinion might yield into the state of judging, the relationship between judging and polarization, the degree to which courts have become accustomed to writing for politically and culturally siloed audiences, and the relationship between lower courts, which mostly are free to play their own games, and the Supreme Court, which plays another. 

The third and final thing I have to say will not be surprising: Whatever I may feel about the outcome, I find it hard to describe Judge Walker's opinion, with all its mix of high and low, pure and impure, as anything but performative, and perhaps narcissistic, as a matter of opinion-writing style.  

Posted by Paul Horwitz on November 17, 2022 at 02:15 PM in Paul Horwitz | Permalink


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