#GorsuchStyle Garners a Gusher of Groans. But Is His Writing Really That Bad?
Posted April 30, 2018 2:13 p.m. EDT
WASHINGTON — Justice Neil Gorsuch arrived at the Supreme Court last year with a reputation as a fine writer. He promptly lost it.
A Twitter hashtag — #GorsuchStyle — is devoted to mocking his tendency to follow a crisp aphorism with a plodding explanation of its meaning. Critics have bristled at his tendency to make grand proclamations in minor cases.
In January, Slate published an article with the headline “Neil Gorsuch Is a Terrible Writer.”
“Since his elevation to the Supreme Court,” Mark Joseph Stern, a legal writer at Slate, contended, “Gorsuch’s prose has curdled into a glop of cutesy idioms, pointless metaphors and garbled diction that’s exhausting to read and impossible to take seriously.”
What counts as good judicial writing is largely a matter of taste. But some things can be measured, and Nina Varsava set out to measure them.
Varsava, who is both a law student at Yale and a doctoral candidate in modern thought and literature at Stanford, used computer algorithms to analyze Gorsuch’s majority opinions during his decade on the federal appeals court in Denver, considering things like informality, varied vocabulary and use of the active voice.
Her study, which will appear in the New York University Law Review’s online supplement, gave Gorsuch high marks.
“Gorsuch does exceedingly well according to the standards that legal writing authorities espouse,” Varsava wrote. “His writing has become progressively stronger by these standards over the past decade.”
She started work on the report before Gorsuch’s literary stock plummeted. The reversal puzzled her, she said in an interview.
“I was quite surprised,” she said. “When I started doing this research, I couldn’t find anything negative on his writing. People on the left and the right were celebrating his writing. And then people started sending me headlines saying Gorsuch is a terrible writer.”
Varsava did not analyze Gorsuch’s writing on the Supreme Court. But she has read his opinions, and she had some tentative explanations for the recent critiques.
“His Supreme Court opinions feel a bit more heavy-handed,” she said. “He’s a little contrived, a little too much.”
She gave an example, citing the opening line from Gorsuch’s first majority opinion: “Disruptive dinnertime calls, downright deceit and more besides drew Congress’ eye to the debt collection industry.”
Varsava said the alliteration was showy and jarring.
“It just seemed like not something a justice should be spending so much time on,” she said. “Even though alliteration is pleasing, it should be a bit more subtle than that.”
More recently, she said, Gorsuch seemed to hit his stride in a majority opinion in a water dispute that started with this observation: “Will Rogers reportedly called the Rio Grande ‘the only river I ever saw that needed irrigation.'”
“That’s quite nice,” Varsava said of the opinion. “It opens nicely, and it’s a very nice read.”
Ross Guberman, an authority on legal writing and the author of “Point Taken: How to Write Like the World’s Best Judges,” said he, too, was puzzled by the vehemence of the recent critiques. Gorsuch has real gifts as a writer, he said, and assessments of his writing have had a partisan tinge.
“Why is Gorsuch so divisive even when it comes to something as nerdy as writing style?” Guberman asked. “One explanation could be that his writing seems highly personal — not personal in the sense of conversational but personal in the sense that he’s trying to call attention to himself.”
It is true that most Supreme Court opinions are impersonal, but that is because they are generally written in a colorless bureaucratic style.
Gorsuch’s writing, by contrast, is informal, full of lively idioms and nicely paced. He uses contractions, short sentences, a varied vocabulary, the active voice and the second person. He has a talent for narrative storytelling, sometimes presenting the factual background of a case as an engaging yarn.
Varsava’s study looked at Gorsuch’s roughly 175 published majority opinions when he sat on the U.S. Court of Appeals for the 10th Circuit. She compared them to the majority opinions of his colleagues on the appeals court in some 3,000 opinions.
Gorsuch used 3.9 contractions per 1,000 words, while other judges averaged 0.8. He started sentences with short conjunctions like “and,” “but” and “so” 4.9 times out of every 1,000 words, compared to an average of 1.5. He used foreign words, including legal Latin, about half as often as his colleagues.
In all, Varsava found, “Gorsuch’s style is considerably less formal and conventional than average, which likely makes his opinions seem more down-to-earth and less legalistic than other opinions — qualities that might increase his appeal and enable him to reach a wider audience.” Varsava also tested the swagger of Gorsuch’s appeals court opinions in light of what she called “his reputation for self-assuredness and overconfidence” by counting “terms of certainty” like “clearly,” “surely” and “decidedly.” It turned out that he did use those kinds of terms more than twice as often as the average judge.
But Gorsuch was also about twice as likely to use “terms of hesitancy” like “possibly” and “maybe.” Varsava concluded, with a bit of hesitancy of her own, that “he might have a proclivity for qualifiers in general.”
Gorsuch is 50, and he just celebrated his anniversary on the Supreme Court. He will most likely have decades to hone his style.
Guberman said the shortcomings in Gorsuch’s writing could settle into something more satisfying over time.
“Despite all his talents and brilliance,” Guberman said, “he makes writing look hard, not easy, as if he’s fiddling with a sentence and then looking up to see if anyone is applauding the latest line. But he’s definitely getting better, and more natural.”