V’s Legalese: An Introduction and Mission Statement

· V's Legalese

Dear Readers,

Boy, the Supreme Court sure can be dull sometimes.

If you’ve ever tried reading a judicial opinion, you probably got about four or five paragraphs in before seeing a citation for a case you’ve never heard of. It appears like an orange cone tossed into the middle of a NASCAR track. Suddenly you have no idea what you’re reading, and nothing else they’re saying around that citation seems to help.

So maybe you skip a few paragraphs down to find the basic point. You continue from there. On the next page appears one line of regular text, followed by the biggest footnote you’ve ever seen in your life. It takes up the entire page and continues into the next. What the heck is this doing here? Should I read it or scroll past it?

Now you’re lost again. They’re talking about another case you don’t know, or comparing dictionary and literary definitions of words.

When next you figure out a place to continue reading, you see the following:

II

What?! You mean all that above was just Part I of the whole opinion? How many body parts are there?! You start scrolling rapidly through subsection after subsection. Roman numerals break down into A, B, and C, which each break down into 1 and 2, which each break down into i and ii. Who the heck organized this?! You reach Part IV or V, or the part that helpfully says “Conclusion,” and finally you get a pithy summary of the entire opinion.

The decision you just “read” maybe has a political consequence that you’re mildly aware of. And in the end, one side “won” out. How? Did the Court just pick favorites from the parties and dress up their judgments in pretentious verbiage to scare away people who dare challenge them? Is all this 100 pages of utterly incoherent discussion just a basketball match between old, egotistical sadists with nothing but time on their hands?

Settle down, head-nodding cynics. The answer is actually no.

The Supreme Court is not a hifalutin body of nine black-robed oligarchs with free publishing tools. Nor is it a ponderous rights-giver of divine anointment. It is an incredibly important institution of law, judgment, and careful management of the American constitutional structure.

But something is clearly missing in the vast gap of space between their redwood tree-sized stacks of paper with opinions and our ability to comprehend them on a basic level. The mainstream press, and many of the useless mouthpieces calling themselves “legal experts” will not help you. If they highlight a section of an opinion, it’s either a soundbite sentence in the last paragraph, or it’s a cute joke, funny word, or clever reference. That doesn’t help either. It just feels like a Hershey’s kiss thrown at you from the top of Mount Olympus.

Read enough stuff from the Supreme Court, you’ll soon understand why only a lawyer can be on it or argue in front of it. But legal speak is just hyper-snooty English, with a few pinches of Latin mixed in. What do we think they’re doing when they interpret the Constitution? Are they just taking a magnifying glass to the text? Is it like peering into the embroideries in Woodcock’s dresses to extrapolate nuggets of morality buried within them? Or perhaps, are they working with larger principles – larger institutions and obligations. The kind you can’t fully encapsulate in a single musing about this or that virtue. What are these people on about?

This is where I come in, and where I wish to start this new segment of my ongoing blog. I am a lawyer, but my professional practice is nothing special and entirely unrelated to what I’ll be writing about here. And my aim with this blog is to do my part as a citizen to: (1) demystify the Supreme Court; (2) make the task of engaging difficult and arcane legal material accessible and even fun; and (3) restore faith in our institutions.

Okay, what the heck does that mean? Here’s what it will not be:

I will not be dealing with regular punditry. If the Court comes out with a big, outrageous decision tomorrow, do not look to this blog as a source of “here’s what I think about it” hot takes. I might write about it eventually, but it will likely not happen immediately.

I will not be attacking the character of Supreme Court justices, living or dead. I’ll attack their ideas, their arguments, their methodologies, and their points of irrational fixation. But if you’re looking for “and that’s why Justice X is a bastard,” you’ll find plenty of that in pieces that get more clicks than mine.

I will not make up my own legal theories. I’m not that smart. Everything I’ve said and will say here will have been said before by someone else, and likely put better than I do. If my blog is the means by which you learn of something better, I’ll consider its mission accomplished.

I will not be formalistic. This is the challenge for me, but I think that if I’m to have any sort of appeal beyond my irrelevant peer circles, I can’t write this blog like an official legal submission. This isn’t a book or a brief or a piece of scholarly writing. Blogs and other such 21st century pieces are made for the screens, not the libraries. No one wants to read “the Fourteenth Amendment” every time when “the 14th Amendment” will suffice. I will use contractions in my words and superscripts in my numberings. I will also not cite every single thing I say in every paragraph like the kid who’s paranoid of getting accused of plagiarism. If I draw a direct quote, there’ll be a citation for it. Otherwise, the references will be informal. Also, I will make jokes – lots and lots of jokes.

And finally, I will not be politically impartial or unbiased. I am a conservative – a real one. My legal and judicial philosophy skews entirely in favor of originalism, textualism. I adhere myself both to principles of natural law and Dworkin’s conception of law as integrity. In future posts, I’ll explain what all those silly words mean. But I am chiefly inspired by, and enamored with, the writings, teachings, and courageous intellectual trailblazing of the late great Justice Antonin Scalia.

Make no mistake – this blog aims to be a positive force of persuasion and greater understanding. There may be entries with a few thousand words denouncing this or that precedent or mode of thought. But by and large, my aim is to defy cynicism and plead faith. It is to stand up for the law, for our American institutions, and for ordered liberty as understood by the brilliant men who wrote an entire universe’s worth of philosophy and insights into a 4-page document.

Here’s to it.

– Vivek

5 Comments

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  1. brainsnorts

    i’m interested in your definition of “originalism” or a justice who is an “originalist.”

    • Vivek

      Clarence Thomas and Neil Gorsuch are both originalists. As for the definition of originalism, that may itself be a whole post. However, the short version is that it’s to interpret reasonably the Constitution and the Bill of Rights and even some statutes according to the original meaning of the words in them. It’s not about original intent so much as the intent that can be discerned from what the words meant to the people who wrote and ratified the law when they did it.

      • brainsnorts

        thanks. now you get to define “reasonably” as it applies to your definition. to do so, i would be grateful if you would illustrate this with an example of a ruling that you believe was an “unreasonable” interpretation.

  2. Neo Montag

    Hey V, I’m super excited about this, and I’ve recently taken some interest specifically in “formalism,” both within and without the legal context. Similar to “brainsnorts” I look forward to a post on formalism or “formalist originalism” or whatever the short-hand is for Scalia’s legal philosophy. I’d like to run my idea of formalism by you and see if it matches what you think. Let me know though if such a comment should wait for a post about formalism. I’m happy to wait for that.

    • Vivek

      You’re welcome to put it here.

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