ON LANGUAGE AND DIPLOMACY IN THE APPELLATE WORLD

(Posted July 18, 2018) One of the fringe benefits of being a member of the ABA’s Council of Appellate Lawyers is that it comes with a subscription to The Journal of Appellate Practice and Process, the nation’s premier law review for those of us who speak Appellate. The most recent issue arrived the other day, and I’ve begun to dig into the five articles. The longest of those, by a wide margin, reminds me of a topic that I’ve been meaning to address for some time now: the language of appellate advocates and courts.

Here is how early appellate judges in Virginia expressed respectful disagreement with each other:

But no such argument was addressed to the court, nor any such reason assigned in the judgment; and with the greatest respect for the opinions of my learned brethren, I must be allowed to say that I think the construction thus given by them is rather a strained construction of the decision of the court.

Lee v. Murphy, 22 Gratt. (63 Va.) 789, 807 (1872) (Bouldin, J., dissenting). Here’s an even earlier one, from the pen of one of Virginia’s greatest legal titans:

My brethren being divided in opinion, it becomes my reluctant duty to express my sentiments, for the first time, upon the subject of these revolutionary claims. And I shall begin by saying, that notwithstanding the very strong views presented by my brother Brockenbrough in the opinion just delivered, and by my brother Brooke in conference, I still incline to the opinion, that the language of the act of May 1779 cannot be otherwise construed, than to place the continental officers on the same footing with the state lines as to half pay, and to include not only those who became supernumerary afterwards, but those also who had become so before the act.

Tatum’s Exec’r v. Commonwealth, 9 Leigh (36 Va.) 56, 75 (1837) (Tucker, P.J.).

And that brings us to the topic of the new JAPP article: the acid pen of the late Justice Nino Scalia. The piece is entitled, “Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility.” It’s 96 pages, chock-full of examples of the late Justice’s invectives – from which there’s a lot to draw.

The journal devotes a full page (18 J. App. Pract. & Proc. at 250) to a long block quote from Scalia’s dissent in Obergefell v. Hodges, in which he repeatedly mocks the majority, describing the ruling of the Court as containing “silly extravagances” and “showy profundities” that are “profoundly incoherent.” He concludes with this:

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.

Obergefell v. Hodges, 135 S.Ct. 2584, 2630 n.22 (2015) (Scalia, J., dissenting).

Well, now.

Anyone with a pulse nowadays has seen this kind of abusive language in public discourse; check out the comments section in any online forum on political topics, or just follow the president’s Twitter feed. Has it become so ubiquitous that incivility like this now pervades even judicial opinions?

Not yet, it hasn’t; at least not around here. Jurists in our appellate courts can and do express vehement disagreement, but I’ve come across nothing remotely like Scalia’s demeaning approach to one’s colleagues. Here are three examples of what passes for a stinging rebuke in Virginia; see how mild they seem in comparison:

With this Court’s ever evolving limitations upon the power and duty of trial judges to order remittitur, for all practical purposes the last nail in the coffin of remittitur has been driven, sounding a death knell for the important safety-valve that remittitur has represented in operating the system of jury trials in Virginia.

Allied Concrete v. Lester, 285 Va. 295, 317 (2013) (McClanahan, J., dissenting).

The majority opinion establishes a lamentable precedent by casting adrift the determination of “judgment and discretion” from its firm moorings within authority granted by well-reasoned departmental guidance such as the General Order.

McBride v. Bennett, 288 Va. 450, 472 (2014) (Mims, J., dissenting).

In its attempt to rebut my observation that its logic is circular, the majority succeeds in further muddying the waters.

Levick v. McDougall, 294 Va. 283, 314 (2017) (Powell, J., dissenting). Indeed, respectful references to opposing opinions are commonplace in Virginia Reports, such as where Justice Kelsey, penning the majority in Levick, writes in understated terms that “On several points, we must regrettably part company with our dissenting colleagues.” Id. at 297.

Why the difference? Why do our most vigorous disagreements seem like examples of brotherly and sisterly love, compared to Scalia’s diatribes? One reason is that Scalia was, if not sui generis, at least very rare. (Even Circuit Judge Richard Posner’s most stinging rebukes pale in comparison.) We each have a place in our mind where the compositional superego, that hand-brake on our urges to vent, resides. In Scalia’s mind, that space was assuredly empty. And make no mistake: His fans loved it. He was skilled with a pen and ungoverned in his message.

I sense that there’s an unwritten ethic among most appellate jurists: The parties, and sometimes even the lawyers, may abuse each other, but we’re above that. They write in a dignified way because they’re in a serious setting. They’re also writing for posterity. The author of the JAPP article says this about Scalia: “Regrettably, his many descendants will someday look through the United States Reports and read the intemperate words written by their ancestor. What will they think of his legacy?” 18 J. App. Pract. & Proc. at 251.

The Supreme Court and Court of Appeals of Virginia are, by all the accounts I’ve heard, extraordinarily collegial. The judges and justices can disagree without being disagreeable. From what I’ve seen, that civility bleeds over into the Virginia appellate bar; we are brethren and sistren and treat each other as such. That goes for our writing, too; those thankfully rare examples of intemperate language in appellate briefs are overwhelmingly likely to come from the pens of trial lawyers who decide not to hire an appellate specialist.

Even so, I fear that the recent rapid downward turn in the level of American social discourse might someday affect judicial opinions generally. The language of populism may never truly invade the appellate courtroom, in which case I’ll be content. But schoolyard-level attacks have become more normalized in our culture. As Michael Winship, the former president of the Writers Guild of America East, wrote recently, “I yearn for a society in which civility rules, but these are not civil times.” It isn’t impossible that judicial opinions might eventually trend in Scalia’s vitriolic direction.