Defending Formality
“Mr. Chief Justice, and may it please the Court.”
These words invariably begin every oral argument before the Supreme Court. Such formalism stands in rigid defiance against a blustery world of ubiquitous multi-word contractions, 24-hour news through 140 characters, and vulgar politics. Sometimes formalism is used as a tool of exclusion, such as when fancy restaurants maintain a dress code, thereby setting a minimum wealth and image standard for diners. But formalism can also be harnessed to unlock closed doors and open old-boys’ clubs to new members and radical ideas. The crisscrossing beams of formalism that undergird the process of arguing before the nation’s highest court, of which ‘may it please the Court’ is but one, often provide a powerful platform to elevate progressive agendas. As radical right-wing American politicians continue to rise out of various political backwaters in the wake of President Trump’s Bannonism, one cannot help but appreciate the formalist mortar that binds the judicial institutional dam against those who would wash away decades of social progress.
“Mr. Chief Justice, and may it please the Court,” may be formal and undoubtedly has deep roots but, in its modern form, it is not an old phrase of American law. Daniel Webster was recorded in 1818 and 1848 saying, “May it please your honors.” Joseph H. Choate preferred, “If the Court please.” The 1960s ushered in the era of uniformity, encapsulated by President Richard Nixon on June 23, 1969, “Mr. Chief Justice, may it please the Court.” Still, Mr. Chief Justice was optional. The current iteration was inscribed by William K. Suter in his Guide for Counsel from the mid-1990s. It will inevitably change at least once more to accommodate the first female Chief Justice.[1] While the phrasing’s history is mildly interesting and somewhat informative, the question remains: what does this formalism add to the judicial calculus?
Most obviously, formalism is a shield against passionate rhetoric. Rituals and other formal trappings harness peoples’ emotions around contentious or new issues by wrapping judicial proceedings in neutral familiarity. The time that formalities inject between the bustle of everyday life and sterility of court order help judges, advocates, and observers settle into their roles for collective discourse. For justices, formality can help breed collegiality when their assumptions and arguments imply antithetical results. For advocates, formality can reduce the stress of making novel arguments about unique facts by sheathing uncertainty in familiarity. All of this hopefully increases intellectual openness. At the Supreme Court, advocates at oral argument are invited into the Justices’ deliberations; invited to make their case de novo and answer the hardest questions. Some level of dispassion and familiarity, aided by formalism, undoubtedly fosters the critical thinking and nuanced distinctions required to dissect society’s most pressing legal ambiguities. At its best, formalism leads to better substance.
Relatedly, formalism fosters a clear homage to the historical and institutional power of the Court in relation to the advocate. The words, “may it please the Court” invites the possibility that an advocate’s approach may not please the Court. In a strict legal sense, one party will lose the case and, therefore, their arguments did not please the Court. At the interpersonal level, some advocates are better at entering into a back-and-forth discussion with the Justices, responding not only to their questions but also to their underlying concerns. Procedurally, beginning with the initial writ of certiorari, asking for the Court to hear the case, there are numerous bits of formality without which the Court will not hear a case at all or might interpret laxity on the part of an advocate. Every bit of formalism, placing the Court in a position of power relative to the advocate, challenges advocates to refine their arguments down to the minutest details. To succeed, they must dot every ‘i’ and cross every ‘t’.
The homage to institutional power also effects the Justices. Chief Justice John Roberts, speaking in October at the kickoff event to Harvard Law School’s 200th anniversary celebration, highlighted the awe-inspiring ability of five lawyers (a majority of the Justices) to, through the power of the pen, arrest the power of the “most powerful force in the world,” our Federal Government. Such judicial power manifested earlier this year as judges issued injunctions emasculating ill-considered executive immigration fiats. Hopefully the timelessness of formalities, which connects judicial decisions of today with the smartest legal minds and the greatest social innovations and advancements in our history, instills humility in those judges who are endowed with the honor of exercising that power. In many ways, when the Justices humbly acknowledge the bulging social muscularity of five people writing in unison, their individual decision making is constrained. They must rely for the argumentation on centuries’ old common law doctrine first laid down by British judges acting under the Crown. They must consider the boundaries of constitutional federalism set out by the framers in 1776. They engage in discussion among the Justices, between the Justices and advocates, and with clerks to forge more robust legal reasoning. They submit to this logic because they are humble enough to realize that these collections of legal and political writings, accumulated over generations and across people, are often more useful for untying knotty intricacies than their own personal intellectual dexterity. Formalism reminds the Justices of the importance of intergenerational and interpersonal humility.
Formalism also ensures that Justices’ opinions are subject to critical review. Opinions of the Court must be written, and opinions are scrutinized by academics, practitioners, media, and laypeople. Failure to ground opinions in the formalities of internal logic, precedent, and linguistics could all be reasons to doubt the validity of an opinion on any, especially controversial, topic.
Formalism of Justices’ written opinions, often characterized by commentators as dry and legalistic, serve to separate legal reasoning from political reasoning. There are obviously implications of politics and social policy imbedded in judicial opinions, but the formal separation of legal and political reasoning still shields institutional norms and legal doctrines from political interference, and gives judges a sword with which to parry political attack. The formal shields of dead-hand British common law or American framer doctrinal influence often leads to the conclusion that the judicial reasoning is conservative and that the law follows social progress. Judges rule, after all, within the four-corners of legislative text, using dictionaries to divine ‘ordinary meaning’. Yet this conservativism also bakes liberal progress into the crust of Federal law. If Congress empowers the Environmental Protection Agency to regulate ‘any air pollutant,’ and air pollutant ordinarily means carbon dioxide, then progressive environmental protection norms are protected by the judiciary against executive interference.
Moreover, judicial formalism protects the Court from claims of partisanship that undermine institutional trust. To be sure, many people think that the Justices on today’s Court are irredeemably partisan. When it comes to the most contentious partisan issues, they often phalanx in liberal and conservative divisions, tugging on Justice Kennedy’s robe for a winning vote. The political splintering of the Court may be accurate but that reality does not diminish the importance of formality; political division enhances the utility of formality. For all the reasons already articulated, formality can bridge partisan divisions and improve decision-making. Importantly, formality de-politicizes what would otherwise be political. There will always be cases that capture the nation’s imagination, where it is inescapable for politics to be read into dry judicial reasoning. Formalism is, however, at its most powerful for all the other cases that come before the Court, which could be fought in searing rhetoric but are instead reasoned through (at least a veneer of) impartiality, reasonableness, and consideration.
It is in all those other cases, which always have important implications for certain constituencies, that formality plays the important role of intermediation between a generalist Court and specialist analysis. That is, judicial formality creates a symbiosis with news coverage and political commentary. Judicial opinions that lack populist appeal, because they are written in the formal and generalist language of legalese, narrow the scope of readers to those who have particular interest in the subject under consideration. Within any interest group, there will be interpreters prepared to translate the Court’s legalese into its more practical social and policy implications. Our society benefits from the intermediation of legal formalism between the Court and commentators because there is flexibility inherently present in the interpretative space between the Court’s answer to a legal question and an idea about how society should be structured. If the Court wrote a judgement with overt political commentary then the social implications of their decisions would be more rigid, the Court majority’s political-will more severely imposed, and the Supreme Court would look more like an Executive of 5 than an institutional corral. On the other hand, as it stands, judicial decisions framed in the formal legalese of logic and doctrine allow competing social forces, sometimes diametrically opposed commentators and advocates, to latch onto the Court’s words and leverage the new opinion, interpreting old doctrine and reframing known logic, to both strive for their competing purposes.
The Supreme Court’s adherence to formalism stands in stark contrast to the irreverence of President Trump. His pleas to populist passion devolve to unsubstantiated rhetoric. His lack of regard for institutional power manifests in unconscionable personal bullying and meddling into what should be impartial judicial processes. His lack of humility drives him to lie compulsively and then irrationally justify the lies. The lack of formality inherent in his decisional processes begets rash early-morning Tweets with unintended consequences. And his disrespect for official formalities has undermined peoples’ trust in his competency as President.
Formalism is often smeared as passé in today’s world of majority-female college graduations, millionaire tech-teens, and the LGBTQ rights movement. In many ways formalism can stand as a barrier to gender, sex, and age equality. And yet, formalism can also work for good, bolstering institutions against illegitimacy and fostering social discourse. In today’s world, sometimes it is nice to hear someone in a prim suit intone, “Chief Justice, and may it please the Court.”
These words invariably begin every oral argument before the Supreme Court. Such formalism stands in rigid defiance against a blustery world of ubiquitous multi-word contractions, 24-hour news through 140 characters, and vulgar politics. Sometimes formalism is used as a tool of exclusion, such as when fancy restaurants maintain a dress code, thereby setting a minimum wealth and image standard for diners. But formalism can also be harnessed to unlock closed doors and open old-boys’ clubs to new members and radical ideas. The crisscrossing beams of formalism that undergird the process of arguing before the nation’s highest court, of which ‘may it please the Court’ is but one, often provide a powerful platform to elevate progressive agendas. As radical right-wing American politicians continue to rise out of various political backwaters in the wake of President Trump’s Bannonism, one cannot help but appreciate the formalist mortar that binds the judicial institutional dam against those who would wash away decades of social progress.
“Mr. Chief Justice, and may it please the Court,” may be formal and undoubtedly has deep roots but, in its modern form, it is not an old phrase of American law. Daniel Webster was recorded in 1818 and 1848 saying, “May it please your honors.” Joseph H. Choate preferred, “If the Court please.” The 1960s ushered in the era of uniformity, encapsulated by President Richard Nixon on June 23, 1969, “Mr. Chief Justice, may it please the Court.” Still, Mr. Chief Justice was optional. The current iteration was inscribed by William K. Suter in his Guide for Counsel from the mid-1990s. It will inevitably change at least once more to accommodate the first female Chief Justice.[1] While the phrasing’s history is mildly interesting and somewhat informative, the question remains: what does this formalism add to the judicial calculus?
Most obviously, formalism is a shield against passionate rhetoric. Rituals and other formal trappings harness peoples’ emotions around contentious or new issues by wrapping judicial proceedings in neutral familiarity. The time that formalities inject between the bustle of everyday life and sterility of court order help judges, advocates, and observers settle into their roles for collective discourse. For justices, formality can help breed collegiality when their assumptions and arguments imply antithetical results. For advocates, formality can reduce the stress of making novel arguments about unique facts by sheathing uncertainty in familiarity. All of this hopefully increases intellectual openness. At the Supreme Court, advocates at oral argument are invited into the Justices’ deliberations; invited to make their case de novo and answer the hardest questions. Some level of dispassion and familiarity, aided by formalism, undoubtedly fosters the critical thinking and nuanced distinctions required to dissect society’s most pressing legal ambiguities. At its best, formalism leads to better substance.
Relatedly, formalism fosters a clear homage to the historical and institutional power of the Court in relation to the advocate. The words, “may it please the Court” invites the possibility that an advocate’s approach may not please the Court. In a strict legal sense, one party will lose the case and, therefore, their arguments did not please the Court. At the interpersonal level, some advocates are better at entering into a back-and-forth discussion with the Justices, responding not only to their questions but also to their underlying concerns. Procedurally, beginning with the initial writ of certiorari, asking for the Court to hear the case, there are numerous bits of formality without which the Court will not hear a case at all or might interpret laxity on the part of an advocate. Every bit of formalism, placing the Court in a position of power relative to the advocate, challenges advocates to refine their arguments down to the minutest details. To succeed, they must dot every ‘i’ and cross every ‘t’.
The homage to institutional power also effects the Justices. Chief Justice John Roberts, speaking in October at the kickoff event to Harvard Law School’s 200th anniversary celebration, highlighted the awe-inspiring ability of five lawyers (a majority of the Justices) to, through the power of the pen, arrest the power of the “most powerful force in the world,” our Federal Government. Such judicial power manifested earlier this year as judges issued injunctions emasculating ill-considered executive immigration fiats. Hopefully the timelessness of formalities, which connects judicial decisions of today with the smartest legal minds and the greatest social innovations and advancements in our history, instills humility in those judges who are endowed with the honor of exercising that power. In many ways, when the Justices humbly acknowledge the bulging social muscularity of five people writing in unison, their individual decision making is constrained. They must rely for the argumentation on centuries’ old common law doctrine first laid down by British judges acting under the Crown. They must consider the boundaries of constitutional federalism set out by the framers in 1776. They engage in discussion among the Justices, between the Justices and advocates, and with clerks to forge more robust legal reasoning. They submit to this logic because they are humble enough to realize that these collections of legal and political writings, accumulated over generations and across people, are often more useful for untying knotty intricacies than their own personal intellectual dexterity. Formalism reminds the Justices of the importance of intergenerational and interpersonal humility.
Formalism also ensures that Justices’ opinions are subject to critical review. Opinions of the Court must be written, and opinions are scrutinized by academics, practitioners, media, and laypeople. Failure to ground opinions in the formalities of internal logic, precedent, and linguistics could all be reasons to doubt the validity of an opinion on any, especially controversial, topic.
Formalism of Justices’ written opinions, often characterized by commentators as dry and legalistic, serve to separate legal reasoning from political reasoning. There are obviously implications of politics and social policy imbedded in judicial opinions, but the formal separation of legal and political reasoning still shields institutional norms and legal doctrines from political interference, and gives judges a sword with which to parry political attack. The formal shields of dead-hand British common law or American framer doctrinal influence often leads to the conclusion that the judicial reasoning is conservative and that the law follows social progress. Judges rule, after all, within the four-corners of legislative text, using dictionaries to divine ‘ordinary meaning’. Yet this conservativism also bakes liberal progress into the crust of Federal law. If Congress empowers the Environmental Protection Agency to regulate ‘any air pollutant,’ and air pollutant ordinarily means carbon dioxide, then progressive environmental protection norms are protected by the judiciary against executive interference.
Moreover, judicial formalism protects the Court from claims of partisanship that undermine institutional trust. To be sure, many people think that the Justices on today’s Court are irredeemably partisan. When it comes to the most contentious partisan issues, they often phalanx in liberal and conservative divisions, tugging on Justice Kennedy’s robe for a winning vote. The political splintering of the Court may be accurate but that reality does not diminish the importance of formality; political division enhances the utility of formality. For all the reasons already articulated, formality can bridge partisan divisions and improve decision-making. Importantly, formality de-politicizes what would otherwise be political. There will always be cases that capture the nation’s imagination, where it is inescapable for politics to be read into dry judicial reasoning. Formalism is, however, at its most powerful for all the other cases that come before the Court, which could be fought in searing rhetoric but are instead reasoned through (at least a veneer of) impartiality, reasonableness, and consideration.
It is in all those other cases, which always have important implications for certain constituencies, that formality plays the important role of intermediation between a generalist Court and specialist analysis. That is, judicial formality creates a symbiosis with news coverage and political commentary. Judicial opinions that lack populist appeal, because they are written in the formal and generalist language of legalese, narrow the scope of readers to those who have particular interest in the subject under consideration. Within any interest group, there will be interpreters prepared to translate the Court’s legalese into its more practical social and policy implications. Our society benefits from the intermediation of legal formalism between the Court and commentators because there is flexibility inherently present in the interpretative space between the Court’s answer to a legal question and an idea about how society should be structured. If the Court wrote a judgement with overt political commentary then the social implications of their decisions would be more rigid, the Court majority’s political-will more severely imposed, and the Supreme Court would look more like an Executive of 5 than an institutional corral. On the other hand, as it stands, judicial decisions framed in the formal legalese of logic and doctrine allow competing social forces, sometimes diametrically opposed commentators and advocates, to latch onto the Court’s words and leverage the new opinion, interpreting old doctrine and reframing known logic, to both strive for their competing purposes.
The Supreme Court’s adherence to formalism stands in stark contrast to the irreverence of President Trump. His pleas to populist passion devolve to unsubstantiated rhetoric. His lack of regard for institutional power manifests in unconscionable personal bullying and meddling into what should be impartial judicial processes. His lack of humility drives him to lie compulsively and then irrationally justify the lies. The lack of formality inherent in his decisional processes begets rash early-morning Tweets with unintended consequences. And his disrespect for official formalities has undermined peoples’ trust in his competency as President.
Formalism is often smeared as passé in today’s world of majority-female college graduations, millionaire tech-teens, and the LGBTQ rights movement. In many ways formalism can stand as a barrier to gender, sex, and age equality. And yet, formalism can also work for good, bolstering institutions against illegitimacy and fostering social discourse. In today’s world, sometimes it is nice to hear someone in a prim suit intone, “Chief Justice, and may it please the Court.”
[1]
Bryan A. Garner, What judges really think
about the phrase ‘May it please the Court?, ABA Journal, April 2013, http://www.abajournal.com/magazine/article/what_judges_really_think_about_the_phrase_may_it_please_the_court.
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