There are many noteworthy things in the Supreme Court’s Obergefell decision,[1] which held that state laws prohibiting same-sex marriage violate the federal Constitution. There’s lots of grist for the law review mill and no shortage of stylistic snippets to mock or rebuke. But more notice ought to be given to Justice Scalia’s dissent. Not for its substantive content, nor for its biting jibes.[2] Rather, we should be paying attention to its revolutionary use of legal citation.
For the most part, court decisions are a dreary affair. Putting their turgid prose aside, they are riddled with—in the main body of the text—citations to authority. Now, legal writing is all about authority, even for the supreme legal authority, but can we not write with both clarity and authority? Do we really need sentences larded with references to past cases larded with references to past cases?
To be sure, this is all part of a lawyerly métier, a medium learned in law school and employed in every motion and brief. Yet in every case but one, the writer has something to prove to someone—to a judge, to a higher court, maybe to the highest court. To the extent that citation weighs down a piece of legal writing, the document appears . . . well, weighty.
No doubt, Supreme Court justices write with other legal readers in mind, but their real audience ought to be that great amorphous, democratic, fitful, semi-literate, Frank Capra-esque body of all types know as the public. They ought to talk to us; yes, to educate us. We the people ought to be part of the conversation. After all, we are the supreme authority. But today who else besides a member of the club can read a judicial opinion?
So, kudos to Scalia for not using intratextual citations in his Obergefell dissent. He chose instead to cite via carefully chosen and emphatically unobtrusive footnotes. This was Bryan Garner’s suggestion in Making Your Case,[3] a primer on advocacy co-authored by Garner and Scalia, but it was advice that Scalia rejected, at least for advocates.[4] It’s one of the reasons why his dissent is so eminently readable.
Not the only reason, of course. It is a piece written to be read; there is nothing opaque in Scalia’s prose. We get the message, as surely the Court’s majority did. Speaking of which, kudos to Justice Kennedy, too, for—at least, at times—making his case in readable terms. It might not be disciplined legal reasoning for Justice Kennedy to assert that “[m]arriage responds to the universal fear that a lonely person might call out only to find no one there,” but it’s not a mystical aphorism either.[5] I get it. And so does everybody else.
Today, a well-written Supreme Court opinion stands out, often in passionate dissent. Will we see a time when it’s the I-asked-my-law-clerk-to-load-it-up-with-cites-no-one-will-ever-look-at opinion that will stand out? If so, this much is certain: No justice will have to hang his or her head in shame.
Jeffrey Shulman teaches constitutional family law at Georgetown Law. His latest book is "The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child" (Yale University Press, 2014).
[1] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
[2] See, e.g., 135 at 2630 n.22 (Scalia, J., dissenting) (“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”).
[3] See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 132-33 (2008).
[4] See id. at 133-35.
[5] I’ll pass on the question of whether it has anything to do with constitutional law. At any rate, it does now, I guess.
