Better to remain silent and be thought a fool than to write a concurrence and remove all doubt.
The post State Supreme Court Justice Thinks It’s Racist To *Checks Notes* Use Proper English Style appeared first on Above the Law.
Alabama Supreme Court associate justice Jay Mitchell could’ve left well enough alone and silently joined the unanimous panel. But he just had to write separately to rail against the petitioner for her and the Southern Poverty Law Center legal team for the brief’s writing style.
Except… she was right.
To set the stage, the Alabama Supreme Court unanimously dinged a Black female judicial nominee’s challenge after the state swiped her office before the election, handing it to another circuit and appointing a GOP judge. That might sound shady, but the opinion suggests that everyone concedes that the new district was in need of another judgeship and that the claims on the table didn’t sound in the Fourteenth Amendment or any other discrimination law.
But Justice Mitchell went and published a concurrence anyway.
Hudson’s implicit accusations of racism are particularly puzzling given that her own filings use overtly biased language when referring to different racial groups. Those filings capitalize “Black” every time it appears but do not capitalize “white” anytime it appears, even when the two words appear side-by-side in the same sentence…. The persistence of this pattern suggests that it is not an accident but instead a deliberate choice, the effect of which is to signal that certain races deserve heightened respect while others do not.
Or it’s a “deliberate choice” to follow the basic style guides. Even if he wanted to go off half-cocked regurgitation of white grievance talking points, some clerk should have intervened to at least put a guide or two under his nose with a post-it noting “in case you don’t want to look like you can’t write the English f**king language.”
Astoundingly… he DID research this! In the next sentence he writes “That signaling may be fashionable in certain circles, but it has no place in our legal system” while footnoting… English style guides! He’s “footnote hand-waving” away the consensus rules of American English as “certain circles.” I wish Pluto was still a planet too, but I’m not writing off the field of astrophysics as “certain circles.”
Then he cites Harlan in Plessy v. Ferguson for all this, which now officially joins “sharing out-of-context MLK quotes” in the All Lives Matter pantheon.
In my own writing, I do my best to follow the rule I was taught in grade school: capitalize proper nouns and adjectives while leaving common nouns and adjectives lowercase.
Unless he wants to start writing like Geoffrey Chaucer, he needs to embrace that language changes over time too.
Since black and white have traditionally been treated as common adjectives, I prefer to leave them both lowercase. In contrast, I capitalize proper adjectives like African, European, and Asian. Others take the view that any descriptor for a racial or ethnic group should be treated as a proper adjective and that, as a result, black and white should be capitalized whenever they refer to groups of people. Our Court of Criminal Appeals, for example, has done this…. I have no issue with that approach as long as it’s applied to all groups equally. But that is not the approach taken by Hudson’s attorneys, who have rejected any evenhanded rule and instead use capitalization in a way that signals heightened regard for favored groups at the expense of other groups.
This is gibberish.
Condensing a lot of lexicography and sociology, “Black” is capitalized the way “Latin American” or “Native American” are capitalized to the extent it refers not to a color but to a unique ethnic identity spawned by the culture-stripping legacy of slavery. Meanwhile, “white” is still lower-case because white isn’t an ethnicity. “Italian American” would be capitalized… but not “white.” Nothing conveys “heightened regard” in this style unless you’re bringing a whole lot of your own baggage to the party.
To be clear, it’s perfectly acceptable to disagree with a style guide. For years, I chafed against style guides for preferring awkward “he/she” or “s/he” terminology instead of allowing for the singular “they” — despite singular “they” dating back some 600 years. But Justice Mitchell isn’t blaming the woke mob behind the English language, he’s blaming the Black woman for properly using that language.
And given the state of the rules, it would seem that Justice Mitchell’s argument for a disfavored style is the one “to signal that certain races deserve heightened respect while others do not.”
Racialized language is not the only example of inappropriate material in Hudson’s brief.
Oh? Do tell!
Hudson’s attorneys also chose to list their preferred personal pronouns in their briefs’ signature blocks, even though that information has no relevance to their client’s legal arguments or to the attorneys’ ability to practice before the Court. I don’t recall seeing this practice in any briefs previously filed with our Court, and I regard this novel use of the signature block as improper. Lawyers sign pleadings in order to verify those pleadings, not to convey biographical details about themselves.
As stupid as this grumbling is, I cannot fathom how someone from a region of the country where Ashley and Lindsey are unisex names could possible complain that someone gives the court a heads up. That’s not meant to diminish the importance of the broader pronoun issue, but something tells me Mitchell would feel bad if he called defendant Ashley Wilkes “she” for 10 pages after showing up trying to get damages for Sherman burning Twelve Oaks. If he got a filing in that case with a “Mr. Wilkes” on it he wouldn’t be bitching about the choice to “convey biographical details.”
Extraneous information — including information about attorneys’ personal histories or their membership in political, religious, sexual, racial, or other identity groups — is inappropriate. Inclusion of such information can create the appearance that an attorney is attempting to circumvent word-count limitations or, more seriously, to curry favor based on the attorneys’ political views or identity-group memberships (imagine an advocate who puts a “✝” or “><>” next to his or her name when practicing before a panel of all Christian judges).
Certainly true if you operate in a world where religious discrimination is on par with merely using pronouns. But here in the real world, those are not the same.
Indeed, the concurrence repeatedly refers to the petitioner as “her.” If this guy’s position was that he never uses pronouns at all throughout his written opinions, then (a) he doubly needs to sit down and read a style guide, but also (b) he might then have an argument that pronouns are extraneous. But he is using them. They are, in fact, integral to his opinion.
It also cuts the exact opposite direction of his argument. No one thought adding “she/her” to a brief submitted to 9 Alabama Republicans — 7 of which were elected by the Alabama electorate — was a move to improperly curry favor with the panel the way invoking some sort of Christian fellowship might.
The concurrence concludes by identifying one salient point:
One unfortunate consequence of the recent trend toward lawyer-driven litigation is that it tends to elevate ideological signaling over substantive legal arguments.
Ideological signaling is definitively elevated over substantive legal arguments here. But it ain’t the plaintiff or the lawyers doing the heavy lifting.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
