*”Dick” is the preferred name of Judge Richard Posner.
INTRODUCTION
As political rhetoric and tensions in the country rise, the judicial branch has a unique opportunity to remain the last bastion of political and institutional decorum. Since its inception, the judicial branch has prided itself on being independent from the will of the masses, as described by James Madison in Federalist No. 78, and thus less susceptible to outlandish or explosive commentary. It was once commonplace to show respect for colleagues on the bench with opposing views, extending them the benefit of the doubt in debate as a reflection of judicial camaraderie.
What was once a sacred space of respectful discord and principled debate has increasingly become a rhetorical battleground, where disagreements are delivered through belittling retorts. Dissents now cut like the thrust of a bayonet rather than a surgeon’s scalpel. Below are just a few examples of how bombastic and inappropriate rhetoric has eroded the perception of legitimacy of the courts. Ultimately, it is crucial that future judges and law clerks, simply, do not write like a Dick*.
Judge Richard “Dick” Posner
At the outset, it should be noted that Judge Posner insisted his law clerks refer to him as “Dick.” Despite my best efforts, I could not find another United States Judge or Justice who was (1) named Rich or Richard (2) and had an aggressive writing style.[1]
One of Dick’s* most notorious opinions came in the form of a dissent from the denial of en banc hearing in Frank v. Walker, a voter ID case from the Seventh Circuit Court of Appeals. The case arose out of a challenge to a 2011 Wisconsin law, which required voters to present specified forms of photo identification at the polls. The plaintiffs—including individual voters and civil rights organizations—argued that the law disproportionately burdened minority, elderly, and low-income voters who were less likely to possess qualifying identification and faced obstacles in obtaining it. After a bench trial, the district court initially struck the law down, but a divided panel of the Seventh Circuit reversed, concluding that the record did not demonstrate that the law imposed a substantial and unjustified burden on the right to vote.
Dick* did not mince words in criticizing the majority’s opinion, calling its rationale and evidence “downright goofy” and “paranoid.” He went on to offer a series of exaggerated hypotheticals, including this notable remark: “[a]s there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”
Dick’s* dissent did not go unnoticed. Indeed, several commentators seized on its fiery rhetoric, describing it as “blistering” and “scathing.” Despite the memorability of these phrases, however, it is not clear that such language is appropriate coming from the judiciary. From a purely persuasive standpoint, research suggests that modesty, likeability, and neutral language are most effective in establishing credibility. A study published in Public Understanding of Science found that when audiences are confronted with “aggressive language,” they tend to view the speaker as less trustworthy and the message as less credible. Similarly, a 2021 study in Frontiers in Psychology concluded that while likability offers only modest persuasive benefits, being disliked carries a significant cost. Accordingly, jurists who rely on harsh language do little to advance their cause and would do well to return to the principles emphasized in legal writing instruction—humility, temperance, and neutrality. Simply put: don’t write like a Dick.*
Don’t Write Like a Dick* on the Supreme Court
You will find little criticism of Justice Scalia’s substantive judicial philosophies in this piece. However, it is important not to overlook the potential adverse effect that Justice Scalia’s tone and writing style sometimes had on the credibility of his legal positions. While his opinions provide undeniable comic relief in constitutional law classrooms nationwide, the combative tone of his writing often leaves much to be desired in the way of collegiality.
There is no clearer example of this than Justice Scalia’s dissent in Obergefell v. Hodges. Controversial as the decision itself was, it was Scalia’s dissent that drew particular attention from court watchers, as he departed from rhetorical norms to launch a series of personal attacks on the majority. He began with the following:
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.
He continues by saying, “[t]he world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” Finally, in the most frequently quoted section of Scalia’s dissent, he shares that:
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.
Unsurprisingly, Justice Kennedy—the author of the majority opinion in Obergefell—did not take kindly to Justice Scalia’s dissent. The dispute between the two Justices led to a nearly year-long rupture in their friendship. Tensions ran so high that Justice Scalia even stopped attending lunches with his colleagues. Eight months after Obergefell, Justice Scalia approached Justice Kennedy to apologize for his temperament, conceding that it had been unwise to adopt the tone he did.
Don’t Write Like a Dick* in Texas
The most recent example of this kind of linguistic badgering emerged from the Western District of Texas in LULAC v. Abbott, in a dissent authored by Judge Jerry E. Smith. The Texas gerrymandering case was bound to inflame political tensions, but few expected such a “scorched-earth” approach from one of the judges involved. The opening line of the dissent, “Fasten your seatbelts. It’s going to be a bumpy night!” did very little to actually prepare readers for the barrage of accusations that followed over the course of the 104-page opinion.
It would be impossible for this article to fully capture the intensity of Judge Smith’s dissent, so I encourage readers to take a moment to read it for themselves. What follows are just a few of its most incendiary lines
- “I also need to highlight the pernicious judicial misbehavior of U.S. District Judge Jeffrey Vincent Brown. In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.”
- “Any pretense of judicial restraint, good faith, or trust by these two judges is gone. If these judges were so sure of their result, they would not have been so unfairly eager to issue the opinion sans my dissent, or they could have waited for the dissent in order to join issue with it. What indeed are they afraid of?”
- “The ultimate question is whether unrestrained ideological judicial zeal should prevail over legislative choice. This isn’t my first rodeo.”
- “This is the most blatant exercise of judicial activism that I have ever witnessed.”
- “In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.”
- “Judge Brown makes every effort to ignore or circumvent [the expert’s] solid testimony. Judge Brown avoids the details of that testimony. Because he won’t tell you that, I do so now.”
- “The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law.”
- “Whether Judge Brown likes it, gravity exists.”
- “There’s the old joke: What’s the difference between God and a federal district judge? Answer: God doesn’t think he’s a federal judge.”
- “If this were a law school exam, the opinion would deserve an ‘F.’”
- “Judge Brown is intentionally misleading at best and disingenuously false.”
These are only a few examples from Judge Smith’s opinion. In case you read the dissent and lost track, Judge Smith stated “I dissent” sixteen times in total. The unfortunate reality, as in so many cases, is that any merit his dissent may have had is lost in the inflammatory rhetoric. A neutral reader will struggle to take his critiques seriously, and those who have already chosen a side will see this language and retreat further into their respective camps. No, this dissent was not written professionally. It was written like a Dick*.
The Call for Judicial Rhetorical Restraint
There is room in judicial opinions for simple, accessible language. There is room in judicial opinions for sharp, precise critique. There is room in judicial opinions for friendly, jovial, and respectful disagreement. However, there is no value in abandoning kindness, humility, or temperance in our judicial system. Nothing good comes sending the mean emails or texts that seemingly every lawyer has in their draft folder. In my opinion, nothing good comes from words intended to belittle, undermine, or insult. Indeed, there are no upsides to writing like a Dick*.
[1] Considerable time was spent reviewing the writings of Judge Rich Leonard (United States Bankruptcy Judge for the Eastern District of North Carolina) and Justice Richard Dietz (North Carolina Supreme Court) to determine whether they would be an ideal centerpiece for this article. Ultimately, their names were discarded from the list of potential examples as their writing styles were unhelpfully kind, friendly, and respectful.
