Originalism, judicial opinions and exclamation marks

May 20, 2014

Richard Re has another entertaining post at his new Supreme Court-focused blog, this time about the use of exclamation marks in judicial opinions. Responding to this post by our co-blogger Stewart Baker, he writes:

Over at the Volokh Conspiracy, Stewart Baker suggested that Leon’s exclamations undermined the persuasiveness of his opinion. That criticism struck me as plausible. Legal writing shouldn’t be boring, but it also shouldn’t be overwrought.

But then I found myself reading Marbury v. Madison and, lo and behold, Chief Justice Marshall wasn’t above dropping a few exclamation marks in his day. As Marshall put it in Marbury: “How immoral to impose [the constitutional oath] on [judges], if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”

Clearly, originalists should be using lots of exclamation marks.

Now, I have been accused by some law journal editors of being a “typographical originalist” (we were fighting about the proper spelling of “M‘Culloch” in light of this article by Michael Collins). But even I don’t think that we should necessarily imitate the writing style of early Supreme Court opinions.

But I was amused by Re’s list of “supreme exclamations” (here) and his question: “What’s your favorite/least favorite Supreme exclamation?”

Mine is from Justice Scalia’s dissent in Brown v. Legal Foundation of Washington:

Surely it cannot be that the Justices look more favorably upon a nationally emulated uncompensated taking of clients’ funds to support (hurrah!) legal services to the indigent than they do upon a more local uncompensated taking of clients’ funds to support nothing more inspiring than the Florida circuit courts.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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