When Justice Ketanji Brown Jackson wrote her ringing dissent in the case of Trump v. CASA, which severely curtailed the ability of lower courts to serve as a check on unlawful executive orders, she wanted to make abundantly clear the danger of what she regarded as a “seismic shock” to American legal norms. “Courts must have the power to order everyone (including the executive) to follow the law — full stop,” she wrote. She continued, in a voice dripping with sarcasm, “The majority sees a power grab — but not by a presumably lawless executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are … (wait for it) … the District Courts.”
Social media platforms exploded with outrage.
One user asked, in apparent disbelief, “Did Ketanji Brown Jackson actually pop that stupid little ‘wait for it’ gag in a SCOTUS opinion?” Another said the dissent “single-handedly degraded 235 years, four months, and 25 days of SCOTUS precedent.” The worst of them turned the justice’s language back on her as a weapon. “Ketanji Brown Jackson is … (wait for it) …” — well, I won’t repeat the insult here, but for good measure, they added, “full stop.”
Her critics were right to note that Jackson was doing something unusual. And it wasn’t just those examples. She peppered the whole dissent with expressions like “Why all the fuss?” “Do not take my word for it,” “Here is what I mean,” and the assessment — again with unmistakable sarcasm — “That is some solicitation.”
You won’t find anything like that in Marbury v. Madison.
What’s striking about Jackson’s turns of phrase is that they employ what we typically regard as oral language — spontaneous, spoken words — in an extremely serious written text. That choice, and the blowback it encountered, are a chance to consider the arbitrariness and narrowness of the conventions dictating how legal opinions should be written. The expectation that their language be timeless, faceless and Latinate is a matter of custom, not necessity. “Why all the fuss?” indeed.
Jackson is, at 54, the youngest justice on the court. She was raised in the 1980s, a time when America’s writing culture was getting markedly less hidebound. Waving aside the hats and girdles and stuffy dance steps of old, the counterculture had shown America how to let its language hang out, too. A new, looser style of writing allowed a play between the oral and the written, and the result enriched the culture rather than impoverishing it.
I can’t speak for Jackson, but that shift had a big impact on a great many people who grew up in that era’s wake. It definitely had a big impact on me. I write in what I hope is a conversational style. Like Jackson, I have sometimes been scolded for it by people who would prefer that I write “with a tie on,” as it were.
Jackson isn’t the only writer to experiment with mixing orality into rarefied texts. Saul Bellow reveled in the high-flying lexicographic richness of the English language, but then every so often paused for a fillip of the colloquial. In “Seize the Day,” he describes a character in language so precise and vivid that it verges on poetry: “And in the dark tunnel, in the haste, heat, and darkness which disfigure and make freaks and fragments of nose and eyes and teeth, all of a sudden, unsought, a general love for all these imperfect and lurid-looking people burst out in Wilhelm’s breast. He loved them. One and all, he passionately loved them.” Just a bit later, Bellow renders the character’s thoughts, and he does so in the baggier structure of speech: “That’s the right clue and may do me the most good. Something very big. Truth, like.”
Key is the “Truth, like,” approximate and slangy, the way that the character would really talk and think. In its immediacy and urgency, oral language pulls us in, makes us listen once we have sat still. Weaving it together with a more formal written style is Bellovian jazz.
Back to Jackson. Behind all the harrumphing is an assumption that language that is accessible cannot also be precise. But Jackson’s own words show that this assumption is mistaken. “It is odd, to say the least,” she wrote, “that the court would grant the executive’s wish to be freed from the constraints of law by prohibiting District Courts from ordering complete compliance with the Constitution. But the majority goes there.” The second-sentence shift to spoken language conveys fervor, urgency and concern, but it doesn’t lessen the scalpel-like precision of the first sentence. And its “Oh-no-you-didn’t!” informality heightens the sense that this is not a remote matter of merely academic interest.
And, as always, orality grabs your attention. Think about how much less powerful her point would be if she stuck to more traditional, formal language such as “the majority ventures this regardless.”
The evolution of language always encounters resistance, and sometimes outrage. When the word “ain’t” appeared in Webster’s Third New International Dictionary in 1961, purists freaked out — and The Times demanded its removal. That response didn’t age well, and neither does the hue and cry over Jackson’s impassioned attempts to convey a sense of urgency. Call it Jacksonian jazz, if you like. But calling it stupid is just nastiness — full stop.
John McWhorter (@JohnHMcWhorter) is an associate professor of linguistics at Columbia University. He is the author of “Nine Nasty Words: English in the Gutter: Then, Now and Forever” and, most recently, “Woke Racism: How a New Religion Has Betrayed Black America.” @JohnHMcWhorter
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