Bad Supreme Court Writing As Exemplified in ''Ford v. Montana'' (2021)

The majority opinion in the 2021 Supreme Court majority opinion in Ford v. Montana illustrates systematic failures in the writing of Supreme Court opinions, probably because they have too many clerks and the judges get lazy.

The case itself is interesting, if technical. Someone sued Ford Motor Company in Montana state court for making and selling a faulty vehicle in other states, a vehicle that the Montanan eventually came to own and that caused damage in Montana. The Supreme Court was unanimous that the Montana state court did have jurisdiction. One justice did not participate. Five of them joined Kagan's majority opinion, which gave a complicated reason for jurisdiction. Alito wrote a concurrence saying that the case could have been easily decided using existing law (International Shoe), because Ford had a large presence in Montana even though no direct connection with the plaintiff. Gorsuch, joined by Thomas, said that it was wrong that businesses get so much more protection from lawsuits than individuals do, and International Shoe was wrongly decided. My notes on the substance of the case are at Specific versus General Jurisdiction for Corporations, and I might write more on it. Perhaps I will write this up for a law review article too, or for some sort of public intellectual outlet. I have two categories of complaint, both concerned with overcitation. One is that the majority squabbles with the concurrences and uses page cites needlessly. The other is that it uses the legalese "ibid" and "id." for no good reason.

Squabbling, with Excess Citation

The passage below was in a footnote. I've added boldface to highlight what I want to talk about.

One of the concurrences here expresses a worry that our International Shoe-based body of law is not “well suited for the way in which business is now conducted,” and tentatively suggests a 21st-century rethinking. Post, at 1 (ALITO, J., concurring in judgment). Fair enough perhaps, see infra, at 12-13, n. 4, but the concurrence then acknowledges that these cases have no distinctively modern features, and it decides them on grounds that (as it agrees) are much the same as ours. See post, at 3-4; compare ibid. with infra, at 11–15. The other concurrence proposes instead a return to the mid-19th century—a replacement of our current doctrine with the Fourteenth Amendment’s original meaning respecting personal jurisdiction. Post, at 9-10 (GORSUCH, J., concurring in judgment). But that opinion never reveals just what the Due Process Clause as understood at its ratification required, and its ground for deciding these cases is correspondingly spare. Post, at 11. This opinion, by contrast, resolves these cases by proceeding as the Court has done for the last 75 years—applying the standards set out in International Shoe and its progeny, with attention to their underlying values of ensuring fairness and protecting interstate federalism.

The passage is a good example of bad writing. It cites to the dissents when specific cites are both unnecessary and unseemly, making the text harder to read and setting this up as a personal argument between the judges on the court.

I don't object to the majority opinion addressing the dissent too much. It certainly should address the dissent's arguments, just as it should address any relevant argument (a little more, actually, since even if the dissent's argument is stupid and not really relevant, it becomes relevant by dignity of being something a Supreme Court Justice thinks is worth writing). It should really do it in the main text, though, rather than setting up a debate in the footnotes, both to give respect to the dissenting colleague's argument and to make it easier to read. But addressing the argument in a footnote is better than nothing.

As a second point, though, it is gratuitous to name the dissenter, or even to say that the argument being addressed is from a dissent. (And I know it's a "concurrence" here, not a "dissent", but it's a dissenting argument, agreeing only in the result.) A majority opinion should be stand-alone. The dissents have no precedential value, zero authority, and don't need to be cited. They are more like briefs, but briefs of Very Important People, like a Solicitor General's brief or an amicus brief by somebody of special dignity like a retired Supreme Court Justice. It's also unnecessary because anybody's who's interested will see the connection with the dissents anyway. So it doesn't add useful information; its only effect is to highlight disagreement on the court.

This goes double for the page citations to the dissent. They are picky and pedantic, useless and undignified. The dissents are in the same pdf file, after all, and if the reader is too lazy to read the whole dissent, he can hit control-S and search for the phrase that's being quoted, if there is one. If there isn't even an exact phrase being quoted, the case for a page cite becomes simply laughable. The effect, in the end, is of the majority judge jumping on petty details in the other judge's dissent, acting like one party's counsel going after the other party's weak argument with a mordant "Aha! What a stupid thing he said--- see it's right there in print on page 4, paragraph 2 line 15 of the response brief for the motion to dismiss!" Let's have some dignity on the court.

So much for dignity. But perhaps it's not a bad thing if the Supreme Court loses its legitimacy; that is a question conservatives often ask themselves. What is more clearly bad is bad writing. Using a long footnote to argue for a substantive point is already bad writing, though maybe there's a case for it; I'd have to think more. But interrupting one's analysis with useless citation is even worse. Even if a citation is necessary, it is always unfortunate, and often best delayed till not just the end of a sentence, but the end of a paragraph. Here, the citations are unnecessary. Who needs to know the exact page of the point being contradicted? Who even needs to know it's a point from a dissent? By the same logic, an opinion ought to be festooned with page numbers from briefs hanging down from every other sentence, since judges usually just adopt arguments from the briefs of the parties and amici.

The Supreme Court is much to blame. Even the judges who didn't sign on to the majority opinion are to blame. They, too, are colleagues, and should help the majority to write better opinions even if they think the majority arguments are wrong. What this looks like is something a clerk wrote, someone who's writing style started out wobbly and then was crippled by too much experience on a law review following foolish Blue Book rules and being told not to think about what good writing is, just do what the rules say. It also smacks of experience with high-school debate tournaments, where the students are graded on a pedantic point system and eloquence is often not only unvalued, but frowned upon. That style of debating does teach students how to make logical arguments and support them with evidence, but it warps one's style unless combined with experience in parliamentary debate, which emphasizes style, clarity, and imagery by focussing not just on making the point for a robot listener, but a human.

I also think I see a precious delight in "writing like a lawyer". Isn't it wonderful to be able to be able to write a sentence consisting of "Post at 7."? It's cute to see, actually, and it is a very good thing for a young lawyer to delight in being part of an ancient profession and its esoteric arts, but it's the duty of his elders to divert his puppyish joy to useful Latinisms like "in personam" and "res ipsa loquitur", to fun doctrines like "no servitudes on chattels", and to a relish for the fine points of net operating loss carryforwards.

Justice Kagan and the others have a responsibility not to let law review junior editors write the opinions, or, worse yet, not to write like law review junior editors.

Ibid and Id.: Ibid

I see "ibid" and "id.", and I think, "Ick." "Ick", as in "she scraped the ick off the back of the stove," though I am tempted to be more pungent. In Ford v. Montana it comes up like this.

That focus led to our recognizing two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction. See Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 919 (2011).

A state court may exercise general jurisdiction only when a defendant is “essentially at home” in the State. Ibid. General jurisdiction, as its name implies, extends to “any and all claims” brought against a defendant. Ibid. Those claims need not relate to the forum State or the defendant’s activity there; they may concern events and conduct anywhere in the world.

What use are these two "ibids"? Why would any reader ever want to see them splat onto the page in between the sentences he is trying to read? Is there anyone who would worry about where the phrase "essentially at home" might possibly come from who would not look to the previous sentence's "See Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 919 (2011)" to find relief from his perplexity? If there is, such a person would not be helped by the sentence, "Ibid." Indeed, a reader at that primitive mental level would probably just wonder who Mr. Ibid was.

Ibid and Id.: Id.

The opinion is also disfigured by generous splatters of hot, steaming, "id.":

These rules derive from and reflect two sets of values— treating defendants fairly and protecting “interstate federalism.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 293 (1980); see id., at 297–298. Our decision in International Shoe founded specific jurisdiction on an idea of reciprocity between a defendant and a State: When (but only when) a company “exercises the privilege of conducting activities within a state”—thus “enjoy[ing] the benefits and protection of [its] laws”—the State may hold the company to account for related misconduct. 326 U. S., at 319; see Burger King, 471 U. S., at 475-476. Later decisions have added that our doctrine similarly provides defendants with “fair warning”—knowledge that “a particular activity may subject [it] to the jurisdiction of a foreign sovereign.” Id., at 472 (internal quotation marks omitted); World-Wide Volkswagen, 444 U. S., at 297 (likewise referring to “clear notice”). A defendant can thus “structure [its] primary conduct” to lessen or avoid exposure to a given State’s courts. Id., at 297. And this Court has considered alongside defendants’ interests those of the States in relation to each other. One State’s “sovereign power to try” a suit, we have recognized, may prevent “sister States” from exercising their like authority. Id., at 293. The law of specific jurisdiction thus seeks to ensure that States with “little legitimate interest” in a suit do not encroach on States more affected by the controversy. Bristol-Myers, 582 U. S., at ___ (slip op., at 6).

I can't see that "id." and "idem" are ever justifiable. In these days of identity politics, you may think my objection is that idem is masculine or neuter rather than feminine (eadem), but I'm willing to overlook that, and not just because my gender is one of those thus honored. Rather, the problem is that (a) no word at all is needed, (b) if a word must be used, it should be "same", not idem, and (c) if the Latin term is to be used, it should be the full idem, not id..

No word at all is needed because either the case being cited is obvious from the context, or it isn't-- in which case its name should be given, not "idem". If a word must be used, why not the English word? Three standard maxims of good writing are "Prefer English words to foreign," "Prefer Anglo-Saxon roots to Latin or Greek," and "Prefer the word with fewer syllables". "Same" beats "idem" on all three counts. And if you absolutely feel you must use "idem", don't abbreviate it. The poor thing is only four letters long; do you really need to cripple it? Chopping off its "em" doesn't even save you two spaces, because you need to insert a period so it doesn't get confused with "id" (which is both a Latin and and English word, with different meanings). So "Id." is one of the stupidest abbreviations in existence, neck and neck with "Jun" for "June".

I will repeat the paragraph, now without my boldfacing:

These rules derive from and reflect two sets of values— treating defendants fairly and protecting “interstate federalism.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 293 (1980); see id., at 297–298. Our decision in International Shoe founded specific jurisdiction on an idea of reciprocity between a defendant and a State: When (but only when) a company “exercises the privilege of conducting activities within a state”—thus “enjoy[ing] the benefits and protection of [its] laws”—the State may hold the company to account for related misconduct. 326 U. S., at 319; see Burger King, 471 U. S., at 475-476. Later decisions have added that our doctrine similarly provides defendants with “fair warning”—knowledge that “a particular activity may subject [it] to the jurisdiction of a foreign sovereign.” Id., at 472 (internal quotation marks omitted); World-Wide Volkswagen, 444 U. S., at 297 (likewise referring to “clear notice”). A defendant can thus “structure [its] primary conduct” to lessen or avoid exposure to a given State’s courts. Id., at 297. And this Court has considered alongside defendants’ interests those of the States in relation to each other. One State’s “sovereign power to try” a suit, we have recognized, may prevent “sister States” from exercising their like authority. Id., at 293. The law of specific jurisdiction thus seeks to ensure that States with “little legitimate interest” in a suit do not encroach on States more affected by the controversy. Bristol-Myers, 582 U. S., at ___ (slip op., at 6).

This should be rewritten as

These rules derive from and reflect two sets of values— treating defendants fairly and protecting “interstate federalism.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 293, 297-298 (1980). Our decision in International Shoe founded specific jurisdiction on an idea of reciprocity between a defendant and a State: When (but only when) a company “exercises the privilege of conducting activities within a state”—thus “enjoy[ing] the benefits and protection of [its] laws”— the State may hold the company to account for related misconduct. 326 U. S. at 319; see Burger King, 471 U. S. at 475-476. Later decisions have added that our doctrine similarly provides defendants with “fair warning” (at 472)— knowledge that “a particular activity may subject [it] to the jurisdiction of a foreign sovereign” (World-Wide Volkswagen, 444 U. S. at 297, likewise referring to “clear notice”). A defendant can thus “structure [its] primary conduct” to lessen or avoid exposure to a given State’s courts (at 297). And this Court has considered alongside defendants’ interests those of the States in relation to each other. One State’s “sovereign power to try” a suit, we have recognized, may prevent “sister States” from exercising their like authority (at 293). The law of specific jurisdiction thus seeks to ensure that States with “little legitimate interest” in a suit do not encroach on States more affected by the controversy. Bristol-Myers, 582 U. S., at ___ (slip op., at 6).

Two Other Citation Problems in That Paragraph: A Bad Typo, and Undercitation

There are other problems with the writing, but I want to keep this discussion focussed on bad citation practices. I'll mention two more items, since they do both concern citation.

First, "326 U. S., at 319" is a typo. What is meant, I think, is "International Shoe 326 U.S. 310 at 319". That may be a secretary's fault, plus, I hope, a couple of proofreaders, though it isn't clear whether it would be worse news that the Supreme Court doesn't use proofreaders or that the Supreme Court uses multiple proofreaders who all miss massive typos. In any case, this typo indicates how sloppy the Supreme Court can be. That might be a feature of unanimous rulings on important but boring-to-some-people procedural issues. See eBay v. MercExchange, 547 U.S. 388 (2006), in which a unanimous Supreme Court seems to have confused preliminary injunctions with permanent injunctions in setting out a four-part test and to have accidentally thrown the law of equitable remedies into confusion ("The Supreme Court's Accidental Revolution? The Test for Permanent Injunctions," Mark P. Gergen, John M. Golden & Henry E. Smith,Columbia Law Review 112: 204-249 (2012)).

Second,the opinion does not give an adequate cite for the Bristol-Myers case. It's fine to abbreviate the citation here, since it was mentioned earlier in the opinion, but even there it was just "Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U. S. __, __ (slip op., at 5)". All that tells us is the names of the parties and that it was one of the documents in a case, perhaps one of several, the U.S. Supreme Court decided between those two parties in 2017. I know that's enough to google with, but why not give us the case number (16-466) and the date (June 19, 2017) to pin things down? How about "Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., U.S. Supreme Court case 16-466 (June 19, 2017) (slip op., at 5), 582 U. S. __, __ (2017)"?

Going into details like whether to write "Id." or "Idem", and whether a cite to a dissent should cite to page numbers, may seem petty. It is not. Good thinking requires good writing, and good writing requires thought as to what is relevant and what is not. If the Supreme Court cannot get things on this petty level right, how are they to get the substance right in their opinions? And if they can't get the substance right, maybe the best place to start reform is with whatever bad thinking is leading to bad writing. Getting rid of "Id." may be a baby step towards American legal reform, but a baby must walk before it can run.

Appendix: Further Notes on Idem, and Some Overexuberant Prose

In writing this, I had more thoughts on idem, but diverted them as tangential. Perhaps I will use them someday.

First, in thinking of the supreriorit of "same" to "idem", I couldn't help but think of where it says in Julius Caesar,

Same and Idem: what should be in that 'Idem'?
Why should that name be sounded more?
Write them together, 'Same' is as fair;
Sound them, it doth become the mouth as well;
Weigh them, it is as heavy; conjure with 'em,
'Same' will start a spirit as soon as 'Idem'.

Second, I wonder whether "idem" is even good Latin. What is its history? Is it really the Latin word for "same"? French uses "meme"; Spanish, "misma"; Italian, "stessa"; Romanian, "acelasi"; Romansh, "medem"; Portugese, "mesma", from quick googling. "Metipsimus" is the vulgar Latin that led to the French "meme" for "same" and probably some of the others. Only Romansh's "medem" looks much like "idem". A dependable Latin dictionary's entry for "idem" leaves it unclear (no pun initially intended). There's also the word, "similiter" which is more similar to "same" and to the Greek "omos" (used in "homosexual"). (German has "denselben" and "gleich"). These all are anaphoric pronouns, which seem to be a rather difficult bit of grammar in linguistics. The classic treatise on "idem" is probably Clarence Linton Meader's 1910 The Usage of Idem, Ipse and Words of Related Meaning, but I can't figure out the answer from skimming it. I conjecture that "idem" is a classical Latin word with multiple meanings centered on "that one" which in the Middle Ages or the 1600's started being used in its modern legalese sense by British scholars writing in Latin. Thus, it is something like law's Anglo-Norman French, a word from a language peculiar to law. But I could well be wrong.

Some Good Writing in the Opinion

"Seven Ways to Write Like Justice Kagan,"

Ross Guberman (March 30, 2021)  lists some good points of the writing of this opinion. Fair enough. I just focussed on a couple of paragraphs.