When Justice Antonin Scalia backed out of a book project with writing partner Bryan Garner, the justice recommended who might take his place. Neil Gorsuch was first on this list.
Experts who spend time examining the writing of the nation’s top judges say it’s not hard to see why the veteran jurist would recommend the man President Donald Trump would later nominate to fill the Supreme Court seat Scalia held for nearly 30 years.
“He has a great facility with ideas and with words,” Garner said.
An examination of Gorsuch’s writings shows he can be breezy with the written word. He can be jocular. He invokes myth and literature and even sports. And you don’t have to agree with his opinions as a judge on the 10th U.S. Circuit Court of Appeals in Denver to appreciate the final product.
“He has a knack for narrative, he’s clever, he has an appealing style,” said Ross Guberman, the author of “Point Taken: How to Write Like the World’s Best Judges.”
Justice Ruth Bader Ginsburg also has called Gorsuch a good writer, and legal writing coaches and experts agree. And that’s more than casual praise: Writing opinions that explain the law is the main part of a justice’s job.
Part of Gorsuch’s appeal is that he explains himself using words you don’t need to be a lawyer to understand.
Gorsuch has likened a legal notice to a basketball bank shot, referenced ghosts and goblins in a lawsuit over injuries suffered at a haunted house and invoked Sisyphus’ eternal quest to push a boulder uphill in an opinion about a decades-long legal dispute.
The bank shot reference came in in Gorsuch’s opinion in favor of a Colorado couple who faced a claim that prints that echoed images created by the artist Erte and that they sold on eBay violated the copyright of the company that held rights to the images. The issue before the 10th Circuit was whether the couple could seek a ruling in Colorado that they did nothing wrong, or instead had to sue in California. That’s where the company sent California-based eBay a demand that it block the couple from taking bids on and selling the prints.
The action in California was done “with the ultimate purpose of canceling plaintiffs’ auction in Colorado,” Gorsuch wrote in 2008. The company's aim “thus can be said to have reached into Colorado in much the same way that a basketball player’s express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket.”
Tim Meyer was fairly new to Gorsuch’s office in Denver when he read an early draft of the judge’s opinion. At first, Meyer thought the basketball reference didn't belong in a judicial opinion.
But Meyer came to believe it was an effective way to explain the law to the couple, who represented themselves in court. “He really was trying to speak to litigants who were not educated or trained in the law,” said Meyer, now a Vanderbilt University law professor.
A prison inmate’s defamation lawsuit showcased another strength in Gorsuch’s writing, Garner said.
“Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no,” Gorsuch wrote in 2011.
Garner said he liked the “down-to-Earth, practical, fully understandable questions” that Gorsuch sometimes asks at the start of his opinions. Gorsuch is among 13 state and federal judges who joined as co-authors, with Garner, of “The Law of Judicial Precedent,” the book about judges’ opinions that Garner originally hoped to write with Scalia.
In another case, Gorsuch disagreed with colleagues who dismissed a mother’s lawsuit claiming her son had been subjected to false arrest and excessive force stemming from incidents at an Albuquerque middle school.
“If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school,” he wrote.
With Scalia’s death last year, Chief Justice John Roberts and Justice Elena Kagan are widely regarded as the two most engaging — and at times entertaining — writers on the court.
Roberts began a dissenting opinion in October 2008 with a few hard-boiled paragraphs straight out of crime fiction. "Narcotics Strike Force, North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak," Roberts wrote, describing a drug bust that Roberts thought was mistakenly thrown out by the Pennsylvania Supreme Court.
In April 2012, Kagan invoked her favorite team’s batting woes as she explained that the meaning of a phrase can vary, depending on context. “And if a sports-fan friend bemoans that ‘the New York Mets do not have a chance of winning the World Series,’ you will gather that the team has no chance whatsoever (because they have no hitting),” she wrote, unimpressed with the team’s strong 7-3 start. (Turns out, she was right. The Mets were 10th in the 16-team National League in hitting and 12th in runs scored that year.)
Kagan is in a class by herself at the moment because her entire opinions, not just the opening sentences, read well, Guberman said.
“In my line of work, you have to look past the first paragraph,” Guberman said. Kagan often is clever and witty, he said, “but when she gets to the drier, more systematic legal analysis, she is still an extraordinarily good writer.”
Gorsuch has yet to reach his full potential as a writer, said Guberman, who considers the 49-year-old’s prose “a little more uneven.”
A justice’s ability to write well improves the chances that the other judges, lawyers and anyone else who reads opinions will understand what the law is.
Justices who write poorly tend to have little lasting influence and can be easily forgotten, Garner said. His case in point is Noah Swayne, President Abraham Lincoln's first Supreme Court appointee. “His entire career is a monument to mediocrity because the man could not write,” Garner said.