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- www.vtbar.org 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 29