SHOULD JUDGES STRAY FROM WRITING “COLORFULLY”?

My friend Dan Donnellon sent me this article earlier this week.  The premise is that judges should avoid writing in a “colorful” style, as doing so “undermines the integrity of the judicial role.”  The author, Nina Varsava, a professor at the University of Wisconsin Law School, suggests that “Judicial opinions should conform to an even-keeled, impassive and even formulaic institutional style.”

I don’t know Professor Varsava, but I honestly don’t think I could disagree with her more.  In her article, she cites to a passage from an opinion written by Supreme Court Justice Gorsuch that apparently does not conform with her views of what constitutes a formulistic style.  I don’t always agree with Justice Gorsuch’s views, but I admire his writing style.  It’s crisp, concise and accessible.  Which means, perhaps, people will gain a better understanding of his decisions.  Hard to see that as a bad thing.

As Dan’s email came in this week, I was reading a copyright decision authored by Judge Frank Easterbrook, of the 7^th Circuit Court of Appeals (which ironically includes Wisconsin).  The opening paragraph of that case said “While a student at the University of Wisconsin in 1969, Paul Soglin attended the first Mifflin Street Block Party, whose theme (according to Soglin) was “taking a sharp stick and poking it in the eye of authority.” Now in his seventh term as Mayor of Madison, Wisconsin, Soglin does not appreciate being on the pointy end. He wants to shut down the annual event.”

With all due respect to Professor Varsava, Judge Easterbrook’s “colorful” style leaves me wanting more.  I suspect that would not be the case with formulaic opinions