Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2017, Vol. 48, No. 3 | Page 29

III. Bad Writing Habits (Sentence Frag-
ments)
All this would be a trifle if the damage
were limited to quirky style choices like con-
tractions, but it gets worse: Gorsuch also
sprinkles his writing with sentence frag-
ments. Sentence fragments result from fail-
ure to include a subject or verb in a sentence.
Sentence fragments also occur when a de-
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pendent clause (a clause that cannot stand
on its own) is a sentence by itself. 54 Sentence
fragments are serious grammatical errors.
The sentence fragment is the first grammar
rule discussed in the Aspen Handbook for
Legal Writers. The Handbook cautions that
“incomplete sentences in a legal document
will be noticed immediately.” 55 It states, with
no exceptions, that sentence fragments “are
not acceptable in legal writing.” 56
Gorsuch does not heed this advice. Here is
a small sampling of Gorsuch’s many sentence
fragments: “All without leaving any clue.” 57
“Too narrow ≠≠≠because incremental harm
depends on what happens to be contained
in the same publication.” 58 “Effectively leav-
ing parties who cannot alter their past con-
duct to the mercy of majoritarian politics and
risking the possibility that unpopular groups
might be singled out for this sort of mistreat-
ment[.]” 59 “Especially to ends as ephemer-
al as ‘health and safety.’” 60 “Not a forward-
looking but a backward-looking authority.” 61
“Judges who assiduously seek to avoid the
temptation to secure results they prefer.” 62
“Listening to a newly minted Justice Scalia
offer his Oliver Wendell Holmes lecture titled
‘The Rule of Law as a Law of Rules.’” 63 “Well,
maybe my old boss Byron White.” 64
This serious grammatical error is perplex-
ing because Gorsuch clearly cares about
grammar. His opinions often turn on fine,
grammatical readings of statutory language.
For example, in Henson, his ruling in favor of
Santander is based largely on the grammati-
cal point that “[p]ast participles like ‘owed’
are routinely used as adjectives to describe
the present state of a thing[.]” 65 To the de-
light of every legal-writing professor, he be-
moans “our old nemesis the passive voice.” 66
He writes short sentences in the active voice.
He advises, as I do my students, that “the
verb supplies the action or doing part of
most any sentence, statutory or otherwise.” 67
He cautions, correctly, “In the richness of the
English language, few things can create as
much mischief as piling prepositional phrase
upon prepositional phrase.” 68 In one case,
he famously diagrammed a statute to make
sense of a provision containing a “bramble of
prepositional phrases” 69 :
Given Gorsuch’s fastidious approach to
grammar, what accounts for his bad lapse
with sentence fragments? To be fair, every
sentence fragment I quoted above is closely
linked to the sentence before it in the orig-
THE VERMONT BAR JOURNAL • FALL 2017
inal text. Thus, the fragments are far less
disjointed in his opinions than they appear
when quoted alone, as they are here. Still,
this does not lessen the grammatical error.
Gorsuch has made a conscious choice to use
sentence fragments as one more technique
to achieve an informal and folksy style. He
may have an out. A leading legal-writing
guide says this about sentence fragments:
“Sophisticated writers who are well schooled
in the rules of grammar can occasionally use
an intentional fragment for stylistic effect.
Most writers, however, should avoid writing
any fragments.” 70 Gorsuch is a sophisticated
writer. This means he can use sentence frag-
ments for stylistic effect.
This is dangerous advice. When does a
writer become sophisticated enough to use
sentence fragments? I dare say too many
writers think they are there now when in fact
they have a long way to go. With so many
writers wanting to write like Gorsuch, the
sentence fragment may soon become nor-
malized. In fact, this is already happening.
One adoring tribute to Gorsuch’s writing on
The Federalist website lists “5 Writing Myths
Neil Gorsuch’s Lively Opinions Busts to
Bits.” 71 One of myths is “never write a sen-
tence fragment.” If the rule against sentence
fragments is a myth, what rules of grammar
are left?
a common law trespass when searching your
wheat fields, he does not commit a Fourth
Amendment violation because the Amend-
ment does not protect ‘open fields.’” 49 I do
not own a wheat field!
The Judicial Opinion Writing Handbook
states that using “you” is “too informal for
judicial writing.” 50 The Handbook states the
reason for avoiding “you” bluntly: “A de-
cision or opinion is not a personal writing.
Therefore, it should be written in the imper-
sonal third person.” 51 A leading legal-writ-
ing manual affirms this sentiment and advis-
es writers to “remember the long-standing
tradition of avoiding first and second person
in any formal writing.” 52 The impulse toward
informality is commendable—it welcomes
readers and makes the law feel less alien—
but using “you” has its problems. In short,
who is you? As the Judicial Opinion Writ-
ing Handbook notes, “you” “may refer only
to the person being addressed or to anyone
and everyone.” Gorsuch, of course, uses
“you” in the latter sense. In this way, his us-
age of “you” is not the second person at all
but some new version of the third person.
I am all for flouting convention, but where
does it end? This is my problem with Gor-
such’s innocuous style choices regarding
contractions, conjunctions, and the second
person: If writers can ignore these innocuous
rules and conventions, why not other, more
significant ones? I guess I am the proverbial
grammar curmudgeon, but I see a slippery
slope from these style choices to more seri-
ous transgressions. I come at this from the
perspective of a professor responsible for
improving my students’ writing. The only
way I can do this is to point to discernible
rules for them to follow, show them how to
follow those rules, and correct them when
they fail to do so. Gorsuch openly flouts
three of those rules.
I could tell students who use Gorsuch’s re-
laxed style that they can do this once they
become a judge. This pat answer will not
suffice, first because it sends the wrong mes-
sage to students that judges are held to a
different (and more lax standard). More than
this, the answer will not suffice because Gor-
such’s writing is held in high esteem. It will
have a normative effect on legal writing. Af-
ter all (sorry!), “many motivated lawyers and
judges seem to be wondering how they, too,
can write like 2017’s most famous judge.” 53
Gorsuch style choices may ultimately change
the look of legal writing.
IV. The Future
I will likely be writing again in the future
on Gorsuch’s evolving writing style. At age
49, Gorsuch is the youngest appointee to
the Supreme Court since Clarence Thom-
as in 1991. 72 He may well be on the Court
for decades to come . Prior to joining the
Court, Gorsuch’s writing was known for its ci-
vility and gentle tone. Observers who liken
Gorsuch’s writing to Justice Scalia’s writing
are quick to draw one distinction: Gorsuch’s
“tone is consistently courteous and mild,
while some of Justice Scalia’s dissents were
caustic and wounding.” 73 Will Gorsuch’s
tone remain civil now that he has ascended
to the highest court? Early signs point to
a shift toward a more truculent style in line
with his mentor Justice Scalia.
In a damning op-ed entitled “Trump’s
Life-Tenured Judicial Avatar,” Linda Green-
house compares Gorsuch to “the new kid
in class with his hand always up, the boy on
the playground who snatches the ball out of
turn.” 74 She asserts that Gorsuch “is in his
colleagues’ faces pointing out the error of
their ways.” 75 Greenhouse says Gorsuch’s
early dissents and concurrences display a
“snarky tone oozing with disrespect.” 76 Gor-
such has already snuck in a “sly dig” at Jus-
tice Kennedy’s opinion in Obergefell, the
same-sex marriage opinion from 2015. He
also “called the chief justice out” with a “pa-
tronizing public reminder about how the Su-
preme Court articulates ‘general principles’”
in a landmark case on public funding for a
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