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The Scribes Journal of Legal Writing THE SCRIBES JOURNAL OF LEGAL WRITING Founding Editor: Bryan A. Garner Editor in Chief Joseph Kimble Thomas Cooley Law School Lansing, Michigan Associate Editor Associate Editor David W. Schultz Mark Cooney Jones McClure Publishing, Inc. Thomas Cooley Law School Houston, Texas Lansing, Michigan Copyeditor Karen Magnuson AN OFFICIAL PUBLICATION OF SCRIBES — THE AMERICAN SOCIETY OF LEGAL WRITERS Subscription orders should be sent to the Executive Director of Scribes, Professor Norman E. Plate, Thomas Cooley Law School, PO Box 13038, Lansing, Michigan 48901. Articles, essays, notes, correspondence, and books for review should be sent to Joseph Kimble at the same address. ©2010 by Scribes. All rights reserved. ISSN 1049–5177 From the Editor You’re holding a one-of-a-kind volume — transcripts of Bryan Garner’s interviews with Supreme Court Justices on legal writing and advocacy. These pages contain a rich lode of quotable nuggets. While read- ing, I started to jot down some examples and wound up with three dozen. Here is just a small sampling: • “I have yet to put down a brief and say, ‘I wish that had been longer’” (p. 35). • “What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law” (p. 37). • “I love But at the beginning of a sentence . .” (p. 60). • “[G]ood counsel welcomes, welcomes questions” (p. 70). • “So the crafting of that issue . Man, that’s everything. The rest is background music” (p. 75). • “[T]he genius is having a ten-dollar idea in a five-cent sentence, not having a five-cent idea in a ten-dollar sentence” (p. 100). • “I can’t bear it [legalese]” (p. 141). “Terrible! Terrible!” (p. 156). It’s all here, from thoughtful responses to pointed questions about writing and oral argument, to fascinating facts about the Justices and their interests. (Justice Ginsburg took a class from Vladimir Nabokov. Justice Breyer likes Stendahl.) And while the iv The Scribes Journal of Legal Writing 2010 Justices naturally disagree on some things, you’ll find themes that run through their answers — themes about clarity and simplicity, honesty and accuracy, overlong briefs (and opinions), rewriting and re-rewriting, attending to grammar, anticipating the other side’s arguments, the primary importance of briefs in decision-making, and the professional need to cultivate strong writing skills. Scribes is grateful to Bryan Garner for furnishing these inter- views and to the Justices for allowing us to print the transcripts in the Scribes Journal. Scribes is also indebted to the Journal’s sponsor, Thomas Cooley Law School, for its continuing generosity — and its commitment to better legal writing. — Joseph Kimble 2010 The Scribes Journal of Legal Writing v Contents From the Editor. iii Interviews with United States Supreme Court Justices Introduction by Bryan A. Garner . 1 John G. Roberts Jr. 5 John Paul Stevens . 41 Antonin Scalia . 51 Anthony M. Kennedy . 79 Clarence Thomas . 99 Ruth Bader Ginsburg . 133 Stephen G. Breyer . 145 Samuel A. Alito Jr. 169 2010 1 Introduction Bryan A. Garner In 2004, I began videotaping interviews with American judges and lawyers, partly so that I could develop a body of work that would inspire law students to write better, and partly so that I could use snippets in my CLE seminars. For nearly two decades, I’d been touring the country and abroad, teaching lawyers how to perfect their writing skills. Everywhere I went I spoke with partners, asso- ciates, and judges on topics related to what works and what doesn’t work in briefs, contracts, and other documents. By the early 21st century, the technology was available to bring into the classroom personal wisdom from the greatest legal minds of our day. By 2006, I had interviewed about 150 judges and lawyers — including judges on all the federal circuits. I now have a huge repository of DVDs from all these judges — an archive that I hope may someday prove helpful to historians and scholars. At some point I decided to seek Supreme Court interviews. But this, unsurprisingly, proved significantly more difficult than it had been to interview circuit judges. My first serious lead was Justice Scalia, who declined an interview but invited me to breakfast the next time I was to be in Washington — to discuss, he said, some of my views on legal writing. Several weeks later over breakfast, in late June 2006, he again declined the interview . at first. We had a wonderful time discussing language and writing, and I persisted in cajoling him to consider an interview. He finally agreed. That interview took place on October 2, 2006, and it went su- perbly. It was that interview, in fact, that convinced both of us that we should write a book together — a collaboration that resulted in Making Your Case: The Art of Persuading Judges (2008). 2 The Scribes Journal of Legal Writing 2010 Within a month, I had invited the two Justices whom I already knew — Justice Ginsburg and Justice Breyer — for interviews and received their commitments. After that, and perhaps because of the positive reports from my earlier interviewees, I found it increas- ingly straightforward to arrange the remaining interviews, all of which, in my view, went stunningly well. They took place on these dates: Oct. 2, 2006: Justice Scalia Nov. 6, 2006: Justice Breyer Nov. 13, 2006: Justice Ginsburg Feb. 27, 2007: Justice Stevens Mar. 2, 2007: Chief Justice Roberts Justice Alito Mar. 21, 2007: Justice Kennedy Mar. 28, 2007: Justice Thomas Throughout this period, I worked with the Public Information Office’s Kathy Arberg to ensure that everything about the process was done to the Court’s satisfaction. The only declination I received was from Justice Souter, who wrote to me as follows: “I feel like a rotter in saying that I will have to ask you to excuse me from an interview, but that’s how I come out. There is a broad spectrum of legitimate opinion about the pru- dence of judges’ interviews, and I’m among the minimalists . Notwithstanding your kindness to me, I’ve never been satisfied with 2010Introduction 3 my own prose; since I don’t think my own work is worth writing home about, I’d feel presumptuous telling other people what they ought to do.” I sent a motion for rehearing — to no avail. But I appreciated the thought that went into Justice Souter’s letter. In asking all the Justices for interviews, I assured them that the purpose would not be commercial. In fact, I wanted to ensure that legal educators everywhere would have full access to the interviews at no charge, and so I’ve kept all the videos posted in their entirety at www.lawprose.org ever since they were made. Many advocacy and legal-writing professors have been able to use the interviews in their teaching at no cost. I am grateful to the Justices for granting me these historic inter- views, and my hope is to make a tradition of it — and to continue interviewing newly appointed Supreme Court Justices not long af- ter they assume their posts. One editing note: for smoothness, we cut the occasional false start or you know or other little distractors in the transcriptions. But the interviews are otherwise unchanged, except for light edit- ing requested by some Justices. For making the transcripts available once again to the bar as a public service, I am grateful to Scribes — the American Society of Legal Writers. Professor Joe Kimble, editor of The Scribes Journal of Legal Writing, has done a tremendous job in ensuring the accu- racy and polish of the transcripts. He was aided by four students from Thomas Cooley Law School: Michael Hekman, Cassandra Werner, Bruce Crews, and Thomas Myers. Professors Meredith Aden and Victoria A. Lowery of Mississippi College of Law re- viewed the transcripts most helpfully, as did Karen Magnuson of Portland, Oregon. To all these people and organizations, my heart- felt thanks. 4 The Scribes Journal of Legal Writing 2010 2010 5 Chief Justice John G. Roberts Jr. BAG: Chief Justice Roberts, thank you very much for taking some time today to talk about legal writing. JGR: Happy to be here. BAG: I wanted to ask you, first of all: Why should lawyers be fastidious with their use of language? JGR: Language is the central tool of our trade. You know, when we’re looking at a statute, trying to figure out what it means, we’re relying on the language. When we’re construing the Constitution, we’re looking at words. Those are the build- ing blocks of the law. And so if we’re not fastidious, as you put it, with language, it dilutes the effectiveness and clarity of the law. And so I think it’s vitally important — whether it’s a lawyer arguing a case and trying to explain his posi- tion, whether it’s a legislator writing a law, whether it’s a judge trying to construe it. At every stage, the more careful they are with their language, I think, the better job they’re going to do in capturing in those words exactly what they want the law to do; in persuading a judge how to interpret it; and as a judge, in giving a good, clear explanation of what the law is. BAG: Do you think the profession could do better on that score? JGR: Yes. I think we all can do better. We read hundreds, thou- sands, thousands of briefs in the course of a year at the Supreme Court, and some are more effective than others. And it’s just a different experience when you pick up a well- written brief: you kind of get a little bit swept along with the argument, and you can deal with it more clearly, rather than trying to hack through .
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