Legal Commentary

My take on the reactions to Chief Justice Roberts's dissent from the denial of cert. in Pennslyvania v. Dunlap is a little different from Steve's.  I don't think the reaction was as laudatory as Steve seems to think it was, although I acknowledge I may not have read as much as he did.  Certainly many people thought it was a notable oddity.  But Orin's take on VC, for instance, was fairly neutral as I read it, and a number of his commenters were critical.  (About the opinion!  Not about Obama!  Many did not even mention Bill Ayers!)

I also don't think Roberts's attempt at creativity was that successful.  First, consider the style of the opening itself.  I yield to no one in my admiration for Raymond Chandler, who I consider one of the best stylists of the last century.  I think every writer, including legal writers, ought to read him.  But Roberts's intro is a far cry from Chandler.  (Cue the obligatory "I know Raymond Chandler.  I read Raymond Chandler.  And you, Chief Justice, are no. . . .")  It is not Chandler.  It's not even Chandler manque.  It's Chandler manque'd by a mile.

Then, consider what style should achieve in a particular context.  Legal writing, to what I hope is just about everyone's regret, often attempts to win by obscurantism, or by piling on endless useless details rather than cutting to the heart of the issues.  It also often attempts to conceal the fact that an opinion has a writer and a personality; or, put differently, it adopts a personality, but a distinctly bureaucratic one.  I think more style and personality ought to be a part of good legal writing, including opinion writing. 

At the same time, however, that style should serve the purpose of the format in which one is writing.  Judicial opinions should attempt to convince by clear and sharp argument, not by trying to cue up our emotional responses in one direction or another.  Roberts, in his opening, doesn't tell us that Officer Devlin is sharp, experienced, and has common sense.  (Nor is it clear he could; 20 drug busts over five years does not clearly demonstrate that Officer Devlin knew what he was about, particularly since Roberts tells us nothing about false positives.)  Instead, he assumes it, and uses every word to force the same response from us.  Thus: "Devlin knew the guy wasn't buying bust tokens."  (Did he?)  And: "Just another day at the office."  (20 drug busts in five years?  That's not very many "just another day[s].")  This is style as manipulation, not style as appropriate persuasive vehicle.  (Imagine if Roberts had adopted Tolkien rather than Chandler as his model, describing the suspect as having the glowing red eyes of an orc and the officer as having the grim mien of the men of Westernesse.  The manipulation would be more blatant and thus less successful.  But the intent would be the same.) 

Third, style shouldn't be a pretty bow you put on an otherwise ugly package.  It should be consistent throughout one's writing.  Here, however, Roberts drops his approach immediately.  The rest of the opinion is clear enough, and I like Roberts's writing in general.  But it immediately retreats to the same old bureaucratic judicial voice-from-on-high.  This not only leaves us with three pages of fairly boilerplate judicial writing (although of a high order), leaving the usual problem of the impersonality of judicial opinion writing right where we left it.  It also increases the sense that the first two paragraphs are a trick or gambit, which puts the reader on guard and makes the intro all the more unpersuasive.

Consider how the Pos (or Judge Friendly, for that matter) would have handled the same opinion.  His opinion would have been clear and straightforward from the outset.  His authority would lie in his certainty, not in his use of the judicial robe as a shield.  He certainly wouldn't have bothered with the pyrotechnics.  Instead, he would cut to the chase by saying, in simple terms, what Roberts ultimately mentions only paragraphs later: that probable cause requires naivete from neither police officers nor judges, that it was most reasonable in the circumstances to conclude that this was a drug buy rather than some other transaction, and that the costs in resources and risk of life entailed in requiring closer observation outweigh the interest in greater certainty.  We could then argue about whether this is right or wrong.  But we would know what we were arguing about and we could have that argument on a clear basis. 

We need more clarity and forcefulness, and less obscurantism or persuasion-by-fiat, in judicial opinions.  Do we ever.  But it should persuade because of what it says, rather than how it says it.  It's nice that Roberts tries to capture our attention, but unfortunate that he tries to short-circuit our facilities of reasoning.  After all, even Philip Marlowe sometimes got the wrong man.