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Cloak-and-Dagger Justice

Humphrey_Bogart2 Perhaps it was a dark and stormy night when Scott W. Stucky was sworn in as a judge of the U.S. Court of Appeals for the Armed Forces. It took place on a rain-slicked pier outside an abandoned warehouse. He wore a trenchcoat and a fedora with its brim turned down. A mysterious woman looked on, dressed all in black. The man who presided stood in a shadow, a diamond ear-stud reflecting a distant light.

Or perhaps not. But as Michael Doyle observes at the blog Suits & Sentences, Stucky is the latest federal judge to write an opinion in the hard-boiled noir style epitomized by authors such as Dashiell Hammett and Raymond Chandler. "There was something odd about the electric razor in the bathroom," the opinion begins. "[She] typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia."

It is a style other judges have attempted, Doyle notes, with mixed results. The most notable judicial stab at noir came last year from Chief Justice John Roberts, in a dissent opposing a denial of writ of certiorari in Pennsylvania v. Dunlap. His dissent begins:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

So Stucky is hardly the loner in this judicial genre. We rejoin his retelling from where the victim felt she was being watched:

But this time the circumstances were simply too odd and her suspicions too strong. [She] took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

Her discovery of the camera resulted in the court martial of a coworker and the appeal on issues therein. But blogger Doyle wonders whether literary stylings are appropriate to judicial opinions.

Suits & Sentences is of two minds concerning these kinds of literary stylings. On the one hand, it's commendable when judges seek to write with verve. A little bit of zing can draw the reader in, which is legitimate given a judicial opinion's education function. And, besides, hard-boiled is fun.

On the other hand, these are awfully serious issues -- just ask the court-martialed Marine, or the two Armed Forces appellate judges who filed separate opinions. It can seem a little iffy to have fun with a decision whose consequences are so life-changing.

Doyle imagines how historic opinions might have read had their authors adopted this style. "William Marbury was mad. Boiling mad. He wanted his commission, and he wanted it now. But he had a problem ..." Would we view the case differently today?

So what do I think about such judicial stylings? I pour myself a bourbon and look you straight in the eye. "There's a right time and a wrong time for everything," I say. "This time, it was the wrong time."

Posted by Robert J. Ambrogi on June 17, 2009 at 11:52 AM | Permalink | Comments (0)


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