Her study, which will appear in the New York University Law Review’s online supplement, gave Justice Gorsuch high marks.
“Gorsuch does exceedingly well according to the standards that legal writing authorities espouse,” Ms. Varsava wrote. “His writing has become progressively stronger by these standards over the past decade.”
She started work on the report before Justice Gorsuch’s literary stock plummeted. The reversal puzzled her, she said in an interview.
“I was quite surprised,” she said. “When I started doing this research, I couldn’t find anything negative on his writing. People on the left and the right were celebrating his writing. And then people started sending me headlines saying Gorsuch is a terrible writer.”
Ms. Varsava did not analyze Justice Gorsuch’s writing on the Supreme Court. But she has read his opinions, and she had some tentative explanations for the recent critiques.
“His Supreme Court opinions feel a bit more heavy-handed,” she said. “He’s a little contrived, a little too much.”
She gave an example, citing the opening line from Justice Gorsuch’s first majority opinion: “Disruptive dinnertime calls, downright deceit and more besides drew Congress’s eye to the debt collection industry.”
Ms. Varsava said the alliteration was showy and jarring. “It just seemed like not something a justice should be spending so much time on,” she said. “Even though alliteration is pleasing, it should be a bit more subtle than that.”
More recently, she said, Justice Gorsuch seemed to hit his stride in a majority opinion in a water dispute that started with this observation: “Will Rogers reportedly called the Rio Grande ‘the only river I ever saw that needed irrigation.’”
“That’s quite nice,” Ms. Varsava said of the opinion. “It opens nicely, and it’s a very nice read.”
Ross Guberman, an authority on legal writing and the author of “Point Taken: How to Write Like the World’s Best Judges,” said he, too, was puzzled by the vehemence of the recent critiques. Justice Gorsuch has real gifts as a writer, he said, and assessments of his writing have had a partisan tinge.
“Why is Gorsuch so divisive even when it comes to something as nerdy as writing style?” Mr. Guberman asked. “One explanation could be that his writing seems highly personal — not personal in the sense of conversational but personal in the sense that he’s trying to call attention to himself.”
It is true that most Supreme Court opinions are impersonal, but that is because they are generally written in a colorless bureaucratic style.
Justice Gorsuch’s writing, by contrast, is informal, full of lively idioms and nicely paced. He uses contractions, short sentences, a varied vocabulary, the active voice and the second person. He has a talent for narrative storytelling, sometimes presenting the factual background of a case as an engaging yarn.
Ms. Varsava’s study looked at Justice Gorsuch’s roughly 175 published majority opinions when he sat on the United States Court of Appeals for the 10th Circuit. She compared them to the majority opinions of his colleagues on the appeals court in some 3,000 opinions.
Justice Gorsuch used 3.9 contractions per 1,000 words, while other judges averaged 0.8. He started sentences with short conjunctions like “and,” “but” and “so” 4.9 times out of every 1,000 words, compared to an average of 1.5. He used foreign words, including legal Latin, about half as often as his colleagues.
In all, Ms. Varsava found, “Gorsuch’s style is considerably less formal and conventional than average, which likely makes his opinions seem more down-to-earth and less legalistic than other opinions — qualities that might increase his appeal and enable him to reach a wider audience.”
Ms. Varsava also tested the swagger of Justice Gorsuch’s appeals court opinions in light of what she called “his reputation for self-assuredness and overconfidence” by counting “terms of certainty” like “clearly,” “surely” and “decidedly.” It turned out that he did use those kinds of terms more than twice as often as the average judge.
But Justice Gorsuch was also about twice as likely to use “terms of hesitancy” like “possibly” and “maybe.” Ms. Varsava concluded, with a bit of hesitancy of her own, that “he might have a proclivity for qualifiers in general.”
Justice Gorsuch is 50, and he just celebrated his first anniversary on the Supreme Court. He will most likely have decades to hone his style.
Mr. Guberman said the shortcomings in Justice Gorsuch’s writing could settle into something more satisfying over time.
“Despite all his talents and brilliance,” Mr. Guberman said, “he makes writing look hard, not easy, as if he’s fiddling with a sentence and then looking up to see if anyone is applauding the latest line. But he’s definitely getting better, and more natural.”
News credit : Nytimes