Justices and their citations

Can you imagine if the text of a U.S. Supreme Court opinion had no citations at all?

You actually don't have to imagine -- you can look at Justice Neil Gorsuch's April 20 lead opinion in Ramos v. Louisiana, 2020 DJDAR 3504.

The case is important on its merits because it held that the Sixth Amendment to the U.S. Constitution (as incorporated against the states by the 14th Amendment) requires a unanimous jury verdict to convict a criminal defendant of a serious offense. That affects pending cases in the two states (Louisiana and Oregon) that have permitted non-unanimous verdicts.

Moreover, the court already has granted certiorari to decide if Ramos also applies retroactively on federal habeas to defendants who were convicted by non-unanimous juries in those states, even though the cases are final. See Edwards v. Vannoy, 19-5807 (May 4, 2020).

As well, the fractured Ramos court produced several important opinions in which the justices expressed divergent views on the nature of stare decisis (the adherence to precedent), as Ramos overruled Apodaca v. Oregon, 406 U.S. 404 (1972), which had approved non-unanimous verdicts, albeit in a plurality opinion.

Justice Gorsuch's use of citations in Ramos is not important as these legal matters. But it constitutes a new chapter in a longstanding debate about what makes better legal writing.

Gorsuch put all his citations in footnotes rather than in the text, in the manner familiar to most lawyers from law review articles. That choice, of course, diverges from the standard practice in most American briefs and judicial opinions.

Consequently, the 26 pages of Gorsuch's Ramos opinion in the court's advance sheet include 79 footnotes at the bottom of the pages. Some of these footnotes are traditional explanations of aspects of the opinion, but most are simple citations. Thus, for instance, when a case name is referred to in the text, its citation (volume, reporter, page and date) appears in the footnote.

Gorsuch has exhibited this approach before, but only in dissent. In Gamble v. United States, 139 S. Ct. 1960 (2019), the text of his dissent contained no citations but 101 footnotes.

It appears that no modern justice has used this format in an opinion for the Supreme Court, rather than when writing separately. Even Gorsuch's opinions from earlier this year contain citations in the text. See, e.g., Comcast Corp. v. National Assoc. of African American-Owned Media, 140 S. Ct. 1009 (Mar. 23, 2020).

For about a quarter century, legal writing guru and current Black's Law Dictionary editor-in-chief Bryan A. Garner has been advocating for placing citations in footnotes. Two days after Ramos, Garner devoted the regular broadcast on his twitter feed to a 21-minute video in which he defends Gorsuch's style decision. (If you are interested in this matter, watching this engaging video is well worth your time.)

Garner acknowledged that "emotions run high" on the subject, that he has heard hostility from lawyers about the issue, and that he has debated the late Justice Antonin Scalia and former Judge Richard A. Posner on the subject.

Interestingly, Garner opposes the use of substantive footnotes, where a reader must be directed back-and-forth from the text to the page bottom to follow the writer's argument. But he believes that citations belong in footnotes, enabling much better persuasive writing as the text is uninterrupted, and allowing most readers to simply avoid the citations. (His full argument, is, of course, presented in considerably more detail in his books and in his recent video.)

As to the "parentheticals" that are commonly used in citations, Garner advocates replacing them by discussing the cases in the text itself.

Though he is widely respected, Garner's views on footnoted citations have failed to catch on with appellate judges. Indeed, an October 2000 Garner lecture motivated several California Court of Appeal justices to follow the footnoted-citation practice in their opinions, but the experiment petered out. See Rodney Davis, "No Longer Speaking in Code," Court Review: The Journal of the American Judges Association (Oct. 2001).

In my view, however, one can absorb some of Garner's persuasive points without adopting them in full.

For decades as an appellate brief writer and judicial opinion author, I have agreed in theory with Garner's view about avoiding substantive footnotes. The view that "if it is important enough, just put in the text" has great theoretical appeal. Who wouldn't rather save the reader from having to move her eyes down the page to read a long footnote?

But, in practice rather than in theory, I have repeatedly found that some points just work better in a footnote: They are important to articulate even upon consideration, yet they actually might make the text more onerous for some readers should they be placed there. The uninterested reader can readily determine to avoid the footnote.

The upshot of this Garner-lite view is to "minimize the use of footnotes." This has the disadvantage of not being a clear rule like "eliminate all substantive footnotes." But keeping minimization in mind encourages the writer to realize that a footnote may be warranted, but only if it is worth the cost of directing the reader's eyes away from the text, which the writer should strive not to do too often.

Likewise, Garner's general point about the harm that textual citations do to legal writing can be absorbed without going "full Gorsuch."

Consider, for instance, the common practice of placing citations after commas in the middle a sentence, as well as at the end. Doing that can create long sentences that are difficult to grasp on the first reading as the reader hunts for the clauses of the actual writing. It is usually preferable to break up such a sentence into two, as readers are (I suspect) well-conditioned to skim over citations between sentences if they are not interested in them at that time.

While lawyers and judges have differing views on these matters, it would be important to everyone if general practices were to change. So is Justice Gorsuch's Ramos opinion going to vault the footnoted-citation approach into new prominence? Will our highest court be moving slowly in that direction?

There has been credible reporting that the U.S. Supreme Court's official style from its Reporter of Decisions has shunned the footnoted-citation practice, mandating citations in the text of opinions. It is quite possible that the court's culture has provided more latitude to dissenting justices, who are not writing for the court itself. This would explain why Gorsuch has, pre-Ramos, deployed footnote-citations in dissent but not majority opinions. And it could make his Ramos choice more meaningful.

At the end of the day, it is only our legal culture's familiarity with its citation practice that shapes our citation rules and preferences. The High Court of Australia footnotes all its citations as Gorsuch did in Ramos, consistent with that country's citation style guides. If Gorsuch is changing our highest court's practice to allow footnoted citations, it could augur more welcoming for that approach elsewhere.

But there is another explanation for Gorsuch's Ramos footnotes, and it might dampen the excitement of those in Mr. Garner's camp.

In an April 23 New York Times opinion column on Ramos that has nothing to do with citation style or footnotes, the Pulitzer Prize-winning Supreme Court reporter Linda Greenhouse explained that she believes that Justice Samuel Alito's dissent in Ramos started out as the majority opinion, which would mean that Justice Gorsuch's opinion may have been written originally as a dissent. Greenhouse explains her reasoning, but of course, acknowledges that she has no proof of this.

Perhaps, then, the majority opinion in Ramos was a special circumstance, where a majority opinion made it into print with law-review-citation style, simply because it was already drafted that way as a dissent. This would mean that Ramos will remain an aberration for the time being, a short chapter -- dare I say a footnote? -- in the story of how judges use citations.

And here's another observation that may support this view.

Since Ramos, Gorsuch authored another majority opinion for the Court, Romag Fasteners, Inc. v. Fossil, Inc., 2020 DJDAR 3706 (April 23, 2020). In that case, unlike Ramos, Justice Gorsuch reverted to his usual practice.

The text of his Romag opinion, while concise, contains plenty of citations. And, indeed, not even a single footnote. 