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Texas Supreme Court Justice is as Memorable in Opinions as in 140 Characters

Texas Supreme Court Justice Don WillettTexas Supreme Court Justice Don Willett is known for many things: for being Texas’s “Tweeter Laureate”; for being on Donald Trump’s short list of potential Supreme Court justices despite repeatedly mocking the candidate on Twitter; and for being one of the best writers on the bench today. His recent concurring opinion in Patel v. Texas Department of Licensing and Regulation demonstrates his skill at the art of opinion writing.

Justice Willett succinctly summed up his writing style: “Even if someone disagrees with me, they should be able to understand how I got there.” This informality isn’t surprising in light of Justice Willett’s admiration for U.S. Supreme Court Justice Kagan’s writing.

One technique Justice Willett uses to make his writing accessible is writing in a relatively informal (a/k/a “impure“) style. Here’s one example:

One of our constitutions (federal) is short, the other (state) is long—like really long—but both underscore liberty’s primacy right away.

Another technique he employs is using short, punchy sentences when appropriate:

The point is unsubtle and undeniable: [l]iberty is not provided by government; liberty preexists government. It is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.

While Justice Willett’s style may be informal, it’s far from dumbed-down. In fact, Justice Willett uses many of the literary devices discussed in Chapter XIV of Advanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts:

Metaphor: a figure of speech that implicitly compares unlike things that have something in common

Some observers liken judges to baseball umpires, calling legal balls and strikes, but when it comes to restrictive licensing laws, just how generous is the constitutional strike zone?

This case raises constitutional eyebrows because it asks building-block questions about constitutional architecture—about how we as Texans govern ourselves and about the relationship of the citizen to the State.

The State would have us wield a rubber stamp rather than a gavel, but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism….

Polysyndeton: repeating conjunctions in close succession

…[I]solating the point at which a rule becomes unconstitutionally “irrational” eludes mathematical precision. But it is no more imprecise as when judges ascertain under the Constitution when a search is “unreasonable” or bail “excessive” or cause “probable” or punishment “cruel and unusual.”

Satire: the use of irony or ridicule to expose folly or vice

The rational-basis bar may be low, but it is not subterranean.

Metonymy: substituting one name or word for another closely associated name or word

Just this week, in a case that took almost 80 years to bring, the U.S. Supreme Court struck down as unconstitutional a New Deal-era, raisin-confiscation regime that had spanned thirteen Presidents.

I plan to continue mining Justice Willett’s Patel concurrence for more legal-writing lessons in a future post. In the meantime, read Chapter XIV of Advanced Judicial Opinion Writing and see how many more examples of the literary techniques discussed above, and how many other literary techniques, you can spot.

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