Bench Memos

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Rules Are Not the Problem; People Are


Last month, The Atlantic featured an essay by Philip K. Howard with suggestions about how to fix the broken federal bureaucracy. Howard thinks that the way to fix government at the most fundamental level is to replace specific legal rules with general legal principles:

What’s the alternative? Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Law based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?

Howard’s argument is superficially attractive. He correctly identifies the red-tape complexity of regulations as a source of wasted effort and irrationality. He also proposes commonsense-type reforms, ranging from reducing the number of regulations to scaling back rules that eliminate accountability for government incompetence.

But he doesn’t recommend that regulatory powers be scaled back; just that detailed laws be replaced by principles that would, in his view, foster responsibility and good judgment. This is problematic.

First of all, without scaling back government power, broad legal principles don’t really provide any certainty about what conduct is proscribed or required. Granting power with the charge “do the right thing” is necessarily a vast grant of authority with little to no corresponding information about how it would be exercised. This gives the government maximum authority, but without properly informing its potential targets how to avoid punishment.

For that reason, the proposal is anti-legal. As Blackstone observed hundreds of years ago, “[a] bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never properly be a law.” Sure, discretionary enforcement isn’t nearly as bad as Caligula publishing laws printed in small type and posting them too high for the public to read, but hopefully America has higher constitutional standards than the Roman Emperor who appointed his horse to be a priest.

Howard nevertheless thinks that principles would be more just than legal rules:

Principles, ironically, are less susceptible to abuse of state power and gamesmanship than precise rules. One of the many paradoxes of “clear law” is that no one can comply with thousands of rules. With principles, a citizen can stand his ground to an unreasonable demand and have a good chance of being supported up the chain of authority.

Seriously? Why would we expect an indeterminate legal “principle” to protect citizens more than a legal “rule?” Legal theorists consider principles to be less determinate, and therefore more susceptible to manipulation, than rules. The Administrative Procedure Act and the Chevron doctrines specifically enable the government to prevail unjustly, forbidding courts from second-guessing agency mistakes as long as they comport with broad principles, i.e., not arbitrary and capricious, an abuse of discretion, or otherwise illegal. In other words: The government wins as long as it wasn’t totally irrational.

Howard tries to deal with the obvious problems that would result from unleashing the government. In Howard’s view, the law is just holding back all the good work it wants to do:

But what about human error and venality? Does law based on principles mean we must trust people? Of course not. That’s why accountability is still important. Moreover, for important decisions, a structure can require approval of several people. Nothing can get done sensibly or fairly, however, until we reconstruct government with a legal framework which liberates people to roll up their sleeves and make things happen.

No doubt that there are many government employees who use their powers wisely. But why does Howard think that an approval structure eliminates the accountability problems? Just look at how agencies circle their bureaucratic wagons in a scandal no matter who is in power. For Howard’s argument to work, the “chain of authority” would have to be invariably concerned with “doing the right thing” more than defending its budget, reputation, employee headcount, access, power, and privileges. Good luck with that.

Second, Howard doesn’t seem to know how accountability works under the Constitution. One of his opening arguments is this:

Responsibility is nowhere in modern government. Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody. Who’s responsible for not managing civil servants sensibly? You get the idea.

Truly strange. As any high-school civics lesson would show, the president is responsible for bad management decisions and shares responsibility with Congress for the rest. All of these officials are democratically accountable. It’s not that they aren’t responsible; it’s that voters don’t hold them responsible. If you don’t like how the government is being run (and there is much to dislike), then either change the law, policy, or the officials themselves. In other words, participate in democracy.

This Day in Liberal Judicial Activism—October 16


1898—William Orville Douglas, who, alas, will become the longest-misserving justice in Supreme Court history, is born in the town of Maine in Minnesota.


A George Leef Column You Can Sink Your Teeth Into


It’s on North Carolina Board of Dental Examiners v. Federal Trade Commission, which was argued before the Supreme Court yesterday, and you can read it here.

Re: Houston’s Harassment of Pastors


According to the WSJ Blog, as Houston’s mayor tries to back away from the massively overbroad subpoenas,* Houston’s city attorney maintains that it’s still somehow proper to obtain the pastors’ communications (including sermons) “related to the [referendum] petition process”:

Houston City Attorney David Feldman suggested to the Houston Chronicle in a story published Tuesday [registration req’d] that the documents demanded by the city could shed light on the extent to which signature gatherers opposing the ordinance were aware of the rules governing the referendum process.

Reports the Chronicle:

Feldman said the pastors made their sermons relevant to the case by using the pulpit to do political organizing. That included encouraging congregation members to sign petitions and help gather signatures for equal rights ordinance foes, who largely take issue with the rights extended to gay and transgender residents.

The city attorney’s statements make no sense to me. First, either the signature gatherers complied with the rules or they didn’t. What they “were aware of” is irrelevant to that question. Second, I don’t see anything in the referendum rules that bars pastors from “encouraging members to sign petitions and help gather signatures.” (If I’m missing something, I invite correction.) So I don’t see how any of the pastors’ communications relating to the referendum petition process might be thought to be relevant to (or to lead to anything relevant to) anything in the ligitation.

* Update: I now see that the mayor and the city attorney are on the same wrong page. Via Twitter, Mayor Annise Parker writes“If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-[ordinance] petition?”​

Houston’s Harassment of Pastors


In an extraordinary step, the city of Houston is seeking to compel pastors to provide all documents in their possession—including all sermons as well as “emails, instant messages, text messages,” and other electronic data—relating in any way to Houston’s recently enacted “equal rights” ordinance. (The full text of one of Houston’s subpoenas is available here.) Among other things, that ordinance entitles men who think they’re women to use women’s restrooms.

After the ordinance was enacted, voters exercised their right to seek to repeal the ordinance through a referendum. They obtained the signatures for a referendum petition and presented it to the city secretary, who certified it as valid. But Houston’s mayor and city attorney rejected the petition. Voters then sued to challenge the rejection. It’s in this action—to which the pastors are not parties—that Houston is serving the subpoenas on the pastors.

The Houston subpoenas are grossly overbroad, for the reasons that the Alliance Defending Freedom, counsel to the pastors, spells out in its motion to quash (and that Eugene Volokh addresses in point 2 of his post). As ADF puts it:

[I]t appears they were designed to punish the Nonparty Pastors for being part of the coalition that invoked the City Charter’s referendum provision, and discourage them and other citizens from ever doing so again. The message is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests.

Two other factors appear to be at work. The first is the clash between the transgender ideology and religious liberty. Mark Steyn sums it up aptly:

When the transgendered bathroom ordinance runs up against the First Amendment, it’s the First Amendment that gets left for roadkill.

The second factor, I’d suggest, is the scorched-earth litigation strategy of so many modern law firms. Geoffrey L. Harrison, Alex Kaplan, and Kristen Schlemmer of the law firm of Susman Godfrey are representing the city of Houston, and they seem not to have given a moment of careful thought to the First Amendment implications in this case of the sort of bullying discovery that they and other lawyers routinely engage in. I would say that they are a disgrace to the legal profession, but I fear that they are all too typical of it.


This Day in Liberal Judicial Activism—October 15


1956—So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure. 

Re: Somewhat Higher Than One in 7.87 Trillion


A follow-up to my post highlighting concerns about Judge Reinhardt’s seemingly non-random assignment to Ninth Circuit cases:

This Texas Law Review article from 2000, titled “Neutral Assignment of Judges at the Court of Appeals,” makes a compelling argument that Fifth Circuit case assignments in civil-rights cases in the early 1960s were manipulated in order to ensure pro-civil rights majorities. (I learned of the article from the en banc petition that has been filed.)

The article also surveys assignment systems in the federal courts of appeals as of 2000 and concludes that “all systems permit a certain level of discretion and human intervention that, in the wrong circumstances, could be abused.” With respect to the Ninth Circuit in particular, the article observes that, rather than enforce a strict separation between the panel and case assignment processes, the Ninth Circuit clerk’s office “runs the [computer] program assigning both judges and cases.” The article faults those courts, like the Ninth Circuit, that seem to think that “the increased use of computer programs to assign cases” makes separation of the processes unimportant. It sets forth what its authors regard as the essential elements of a neutral assignment system.

(I don’t know what system the Ninth Circuit currently uses.)

Somewhat Higher Than One in 7.87 Trillion


Josh Blackman reports that an attorney for a group defending the marriage laws of Nevada and Idaho has filed a petition for rehearing en banc in the Ninth Circuit that alleges that the “appearance is strong and inescapable that the assignment of this case to this three-judge panel was not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

Law professor Derek Muller calculates at roughly one in 1,000 the odds that any single active judge on the Ninth Circuit would be randomly assigned to all three recent Ninth Circuit panels involving challenges to marriage laws and/or alleged sexual-orientation discrimination. But Reinhardt did indeed sit on all three (yes, even the case in which the ACLU affiliate that his wife led had taken part and in which she had publicly “rejoice[d]” over the district-court decision that Reinhardt would be reviewing).

Reinhardt’s seeming luck isn’t limited to these three cases. Concerns have circulated for years among conservative judges on the Ninth Circuit about Reinhardt’s amazing propensity to be selected to sit on important cases with a strong ideological valence. (You’ll find some of the cases here.) I’ll leave it to an advanced statistician to try to figure out the odds that random assignment would place Reinhardt on all of the larger set of cases. Perhaps it wouldn’t reach one in 7.87 trillion—the odds (according to DNA analysis) that someone other than Bill Clinton was responsible for messing up Monica Lewinsky’s blue dress—but I’m confident that it would be incredibly low.

I’m strongly inclined to wonder whether nefarious hijinks in the Ninth Circuit clerk’s office in San Francisco, rather than sheer luck, would explain the phenomenon. The clerk’s office could dispel such concerns if it disclosed any safeguards that it deploys to protect against such an abuse.

[Note: About ten minutes after my initial posting, I deleted a sentence from the second paragraph that I decided mispresented the odds.]

D.C. Event on Marriage and Religious Liberty


Next Tuesday, October 21, I will be speaking on the topic “What’s Happening at the Supreme Court? The Fights for Marriage and Religious Liberty” at a lunch sponsored by the Thomas More Society of America. More info on this downtown D.C. event is here.

This Day in Liberal Judicial Activism—October 14


1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment. 

This Day in Liberal Judicial Activism—October 12


1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Marriage, Dred Scott, and the Fog of Unreason


Last week in this space, I referred to the trend of same-sex marriage rulings, now unfortunately sanctioned-by-omission by the Supreme Court, as a “slow-motion Dred Scott.”  This got a rise out of people who professed to be offended—which did not surprise me since so many people have made being offended an actual career choice.  So I later explained what I meant by it.

The result?  My own Two Minutes Hate.  My Twitter feed exploded with touching expressions of regard.  Someone pronounced me “A**hole of the Day” (considering the folks responsible, I’d be happy to own it for a whole week).  I heard from an old friend 500 miles away that I even earned 10 seconds of infamy on “The Colbert Report.”   (For more on Mr. Colbert, see this.)

I was away from any access to Twitter for the better part of a day, and when I returned to my desk I had actual work to do and people to talk to (the expression “social media” does not do justice to the negative impact that obsession with them has on real social life).  So I’ll just make some postscript observations here, now that the detritus of people’s heads exploding has settled to earth.

I noticed that no one who knows anything about constitutional law or the Dred Scott case had any real criticism to offer of what I’d said.  That’s because among such people, comparisons like the one I’d made are a nickel a dozen.  Dred Scott is the paradigm case of judicial “statesmanship” turned bad, with the Supreme Court defying legitimate norms of the rule of law and limits on its own power, while foisting a wholly fictitious account of constitutional meaning on a country deeply divided over the issue that the Court decided.  It also occasioned one of the most celebrated critiques of judicial supremacy in our history, from our greatest statesman.  Aside from that last feature—unfortunately—the episode has striking parallels to our present situation.

Did I therefore mean to say that same-sex marriage is the moral equivalent of slavery?  Only someone who would struggle to earn a D in a basic logic course would draw that conclusion.  I do indeed think state recognition of same-sex marriage is morally objectionable, as do roughly half of all Americans—maybe considerably more than half, but now the courts in most of the country have ruled out any possibility of inquiring into that for purposes of democratic decision-making.  None of us, so far as I know, thinks it is as bad as treating human beings like chattel property.  There, now, does everyone feel better?

Could I have compared same-sex marriage rulings to Roe v. Wade?  Sure, but for 40 years it has been routine to compare Roe to Dred Scott, and rightly so.  Roe relied on the fraudulent doctrine of substantive due process, which is widely understood to have made its first appearance in Dred Scott.  Why cite the sequel when you can cite the original?  Besides, as Ed Whelan pointed out on Twitter, comparing the marriage cases to Roe would not have much purchase with folks who think there’s a constitutional “women’s right to choose”—who largely coincide with same-sex marriage advocates.

Let’s see, I could have compared the marriage rulings to Lochner v. New York.  That too is a notorious substantive due process case, which for over a century has been anathema to liberals who claim (sometimes) to be worried about judicial over-reaching.  Would people infer that I thought same-sex marriage is the moral equivalent of “progressive” interferences with the terms of employment arrangements in bakeries?  I didn’t think so.

Or I could have compared today’s cases to Griswold v. Connecticut, in which the Court strained not to appear to be doing what it was really doing all over again through the due process clause—making a policy judgment instead of a legitimate constitutional decision.  Then people could have complained that I thought same-sex marriage is “just as bad as” . . . married men and women using condoms.  I can feel the waves of loathing from here.

The bad thing about Twitter’s limitations is that arguments can’t be much developed in just 140 characters.  The worse thing about Twitter is that lots of people think this is an excuse for retiring permanently from the business of making arguments.  Judging from the performances of American courts in the last few years, the same-sex marriage issue is having the same effect on many judges, even when they have 140 pages to play with.



This Day in Liberal Judicial Activism—October 11


1990—More from Florida justices Rosemary Barkett and Gerald Kogan. In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Barkett, joined by Kogan, asserts: “A basic legal problem with the criminalization of obscenity is that it cannot be defined.… Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.” Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”

Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections. Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity.

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

Twitter, Facebook, and More


If you’re interested, my Twitter account is @EdWhelanEPPC. My Facebook page is

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Bipartisan Support for Judicial Selection Reform in Tennessee


Tennessee’s constitution unambiguously states that “the Judges of the Supreme Court shall be elected by the qualified voters of the State.” Despite that text, in 1971 the state’s legislature adopted a form of selection commonly known as the “Missouri Plan,” the lawyer-dominated, commission-based method of appointment favored by trial lawyers and far-left organizations funded by George Soros. And since then Tennesseans have been locked in an intense fight dominated mainly by two factions:  Those who insist on the Missouri Plan, and those who insist on judicial elections.

A few years ago we urged Tennesseans to consider a sensible third way: a constitutional amendment sponsored by conservative state senator Brian Kelsey which would abolish the state’s Missouri Plan once-and-for-all, replacing it with an advice/consent process, like the one set forth in the U.S. Constitution, while still requiring judges to stand for a yes/no “retention” election at the end of their term. The proposed amendment also seeks to prevent the sorts of nomination logjams we see at the federal level by giving a nod to a feature originally proposed by James Madison: the governor’s nominees would be confirmed by default if not affirmatively rejected by the legislature within 60 days of nomination.  

We have never shied away from our support for contested judicial elections — a form of selection that has worked well for nearly half of the states — but we also recognize the brilliance of the method of selection codified in the U.S. Constitution by our Founding Fathers. Why not import it to Tennessee if it would settle the debate and abolish the Missouri Plan?

We were thrilled to see Senator Kelsey’s proposed amendment pass through both chambers of the state’s legislature with overwhelming support, and the endorsements of Governor Bill Haslam, Lt. Governor Ron Ramsey, House Speaker Beth Harwell, and a broad range of organizations from the Tennessee Farm Bureau to the Tennessee Chamber of Commerce and the Beacon Center of Tennessee.  Subsequently, the legislature also took the step of allowing the state’s nominating commission to expire, signaling a death blow for the Missouri Plan in Tennessee, and giving the governor the authority to select nominees without the encumbrance of a mandatory nominating commission dominated by special interests.

The proposed amendment is now before Tennesseans, who will decide this November whether to make it part of the state constitution. And, as you can see from the “Yes on 2″ campaign’s television advertisement below, the amendment’s base of support continues to grow.   

Updated 10/16/2014

On Dismantling Roe v. Wade


In an article co-published by ProPublica and the New Republic, Nina Martin presents an interesting (if at points confused) account of how Alabama supreme court justice Tom Parker is exposing the deep incoherence of Roe v. Wade. Her closing quote from a feminist scholar nicely captures that incoherence (even as Martin herself seems eager to embrace it):

Parker is pointing out all the ways the law treats the fetus as a person already…. The pro-choice argument, meanwhile, is that the personhood of the fetus hinges entirely on the women’s perception of it.

A few other comments on Martin’s account:

1. Martin says that the Court’s 1992 decision in Planned Parenthood v. Casey “reaffirmed a fundamental right to abortion.” But both defenders and critics of Roe point out that Casey’s amorphous “undue burden” standard is incompatible with the notion that abortion is a “fundamental right.”

2. Martin’s account of the competing approaches that pro-life groups took, pre-Casey, to countering Roe is confused. She says that the “comparatively moderate pro-life mainstream favored a strategy of regulating and restricting access to abortion, rather than betting on repeal” by constitutional amendment. But she seems not to understand, or at least fails to make clear, that the “pro-life mainstream” strategy was aimed at inducing the Court to reverse Roe.

3. Martin contends that Justice Kennedy “has upheld every abortion restriction to come before him.” That’s both wrong and misleading. It’s wrong because he voted to strike down the spousal-notification provision at issue in Casey. It’s misleading because the existence of Casey means that provisions that clearly clash with Casey will likely either not get enacted in the first place or will get knocked down in the lower courts. In other words, there’s no reason to believe that Kennedy is ready to revisit Casey.

4. When Martin says that the goal of the “personhood” movement is “to get to the U.S. Supreme Court—as quickly as possible, while conservatives still dominate,” I won’t contest that she accurately describes the goal of the personhood movement and its apparent misperception of the Supreme Court. But her phrasing indicates that she herself believes that on the constitutional question of abortion “conservatives still [?? since when?] dominate.” On this matter, any definition of “conservative” that includes Kennedy (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) is an unsound one.

5. Here’s one amusing sign of Martin’s cluelessness about the conservative religious world she is navigating: She writes, “Crucifixes are more ubiquitous than the American flag” in Montgomery, Alabama. She evidently doesn’t know the difference between a crucifix and a cross. (According to this Pew map, 6% of adults in Alabama are Catholic.)

Update (2:30 pm): Martin has made changes in response to points 1, 2, 3, and 5 (and, via Twitter, has graciously credited my comments). 

More White House Incompetence


On the day that Eric Holder announced that he would be stepping down from his position as Attorney General, I ran across a senior White House official from a Republican administration. Charitably attributing some minimal level of competence to the Obama administration, he assumed that the White House had already selected Holder’s successor and asked me who I thought had been selected. When I told him that I’d bet that the White House hadn’t made a decision, he was very surprised that it might be so incompetent.

Two weeks later, Politico reports that the White House is “vexed” on how to replace Holder and “is seriously considering waiting until after Election Day to announce a replacement … in order to avoid creating a new political problem for vulnerable Senate Democrats.”


This Day in Liberal Judicial Activism—October 10


2008—By a vote of 4 to 3—with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice—the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution.

Justice Kennedy and Ernest Hemingway


By the standards of Supreme Court justices, Anthony Kennedy is a painfully bad writer. I’d think that’s a proposition that would earn a consensus across the ideological spectrum. So I was especially amused—but, given his pompous self-regard, not surprised—to read this passage from a Wall Street Journal article yesterday about the use of adverbs in legal writing:

On the Supreme Court, Associate Justice Anthony Kennedy has assiduously sought to banish [adverbs] from his own prose.

“I do not like adverbs,” he once explained in an interview with [legal-writing guru Bryan] Garner. “I noticed once that Hemingway had no adverbs, or very few, very few. And I think adverbs are a cop-out,” he said.

Avoiding adverbs “forces you to confront the significance of your word choice,” Justice Kennedy said. “You just discipline yourself to choose your words more carefully.”

Ah, yes, what a careful and disciplined writer Kennedy is.

I’m reliably informed that Kennedy does indeed have an (irrational) animus against adverbs ending in ly and that he instructs his law clerks to avoid them. But rather than simply drop the adverbial sense, Kennedy instead substitutes wordier adverbial phrases or rewrites the passage more awkwardly.

A quick review of one of his opinions (Lee v. Weisman) provides a few apparent examples:

… provisions the Fourteenth Amendment makes applicable with full force [instead of fully applicable] to the States and their school districts. 

High school graduations are such an integral part of American cultural life that we can with confidence [instead of confidently] describe their customary features.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet …. [instead of Providence school officials have customarily provided]

Similarly, Kennedy routinely writes “with respect, I dissent” rather than “I respectfully dissent,” even in contexts in which the former is markedly more awkward: e.g., “For these reasons, and with respect, I dissent” and “That is why, with respect, I dissent.”

But Kennedy’s recent brief concurrence in Hobby Lobby has a surprising number of –ly adverbs, including three in the last full paragraph (unduly, closely, precisely). That’s yet another indication that he wrote that murky opinion in a hurry.

The EEOC on Criminal Background Checks


Do as we say and not as we do, says the EEOC. In fact, don’t even ask what we do.


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