Suppose a Bond villain (or Dr. Evil) demanded $1 million unless you read every word of a SCOTUS majority opinion. And just to make it interesting, he required you to choose from one of two opinions, each of which involves elections. The first opinion considers a statutory question: do mail-in votes need to be received on election day? The second seems more grandiose: can the federal government protect citizens from political actors who would dilute their votes? (Chief Justice Earl Warren called the second the most vital decision during his time on the court.)
Which do you choose? Be careful, because you’d probably choose the more dreadful option.
It’s all about the verbs.
The first opinion, Watson v. Republican National Committee, opens with a yarn about election laws and elections in the early United States, including absentee ballots for Civil War soldiers. Justice Amy Coney Barrett spins this yarn by choosing great verbs.
The second – Baker v. Carr – not so much. Even when protecting voting rights, Justice William Brennen, its author, drains verbs of all their life by adding suffixes and turning them into nouns. Dive into the opinion and you’ll question whether you’d rather stop reading and just pay the million bucks instead.
So how does Barrett do it? Like the chief in Learning Resources v. Trump, she often builds her sentences around a character as the subject and gives them a great verb to perform. Thus, we read, “Congress may ‘override’” most of a state’s choices on elections. “State legislatures may ‘direct’” how electors are chosen. “Congress may determine” when electors are chosen. “Congress allowed” leeway to the states. “Congress enacted” an election day statute. Later, “Congress intervened” in the election day schedule. As for ballot deadlines, states at first “imposed” an election day deadline. But later, “
But Barrett also uses some subjects that aren’t actors. When she does, look at the verbs! We read that the elections clause “empowers” state legislatures. Responsibility for certain matters “belongs” to the states. The Constitution “lodges” power in state legislatures. Fraud “ran rampant” then “continued to plague” elections. But public assembly “helped ensure” voters were qualified.
Joseph Williams calls these “virtual characters” – otherwise inert objects or concepts that spring to life when given strong verbs. Whether she’s using real actors or virtual characters as her subjects, Barrett writes with a preponderance of these strong verbs throughout the opinion.
In Section II.A., she narrows the issue using active verbs. The plaintiffs “challenge” this but “do not . . . challenge” and “do not contend” that or “do not object” to something else. Likewise, the court “does not consider” constitutional arguments that are out of play.
Similarly, in Section II.B., she hammers the verbs in setting out the texts to be construed. The statutes “regulate,” “provide” and “establish.” Congress has “inserted” a phrase, “created” an exception, and “defined” election day. And the statute governing overseas ballots “reinforces” her point. It “confirms” and “requires” and “establishes” and “specifies” and “mandates.” As for the court’s precedent, the court has “defined,” “observed,” “emphasized,” and “explained.”
In writing like this, Barrett (like Gorsuch and Roberts in previous posts) is creating prose that would satisfy normie English readers. In fact, she is modeling what Steven Pinker calls “classic style.” In his book, “The Sense of Style,” Pinker describes this as “a writer in conversation with a reader, direct[ing] the reader’s gaze to something in the world.” I would emphasize: directing the reader to “something real in the real world” – not a lawyerly, interior world that contains only ideas and abstractions.
A writer does this (in part) by keeping verbs as verbs rather than turning them into nominalizations – “zombie nouns.” Zombie nouns once sallied forth as verbs, but now lurk in the crevices of sentences, sucking all the action out of texts. A lesser writer has (in Pinker’s words) taken “a perfectly spry verb” and embalmed it “into a lifeless noun by adding a suffix.” Instead of a Congress “inserting,” we would read about “the insertion of Congress.” Instead of the court “observing,” we would trudge through the court’s “observations.” Instead of the Constitution “lodging” power with the states, we would choke on “the enlodgement of power” by the “Constitutional provision.”
Like Barrett, Brennen could have written an election drama. After all, Americans were having their votes diluted. But in Baker v. Carr, we almost never encounter either the Americans or the states who were doing the supposed dirty work. Instead, we read that a “[d]ecennial reapportionment . . . was effected.” Then “[t]he 1871 reapportionment was preceded” by other events. And 20 years later, “there were both an enumeration and an apportionment.” Piling zombie on zombie he writes, “The injury which appellants assert is that this classification disfavors [them].” As Pinker might describe it, Brennen unleashed a hoard of zombie nouns to “lumber across the scene without a conscious agent directing their motion.”
Rather than use strong verbs to create virtual characters, Brennen allows abstractions to passively exist on the page. So we read that Tennessee’s apportionment “standard . . . is based” on county population. And Brennen even declines Barrett’s choice to center the court as a character. Instead, he writes that the “court’s disagreement . . . is clear.”
At one point, it looks like Brennen might make a virtual character out of the Tennessee Constitution. But then the story dies. Right after he tells us the “Tennessee Constitution provides,” a clerk or secretary pastes in a 274-word block quote.
We never read that “Tennessee reapportioned” voting districts. In the 164 pages of opinions, appendices, and barnacled footnotes, zombies outnumber the living verbs like an apocalyptic hoard:
- (Re)apportion(s): 13
- (Re)apportioned: 20
- (Re)apportioning: 14
- (Re)apportionment(s): 229!
As a result, Brennen and the Warren Court leave voters and readers waiting for Godot. Spoiler alert – Godot never shows. Write like the Warren court today and an employer would likely place you in a performance improvement plan.
To avoid that, slay zombies like Barrett. Add a step to your line editing that pays particular attention to the verbs. Of course, prefer actors as subjects and actions as verbs. And prefer them together at the beginning of a sentence. But also do a word-search for all the forms of “to be” – am, are, is, was, were, will be, have been. When you find them – especially a lot of them in one place – become a zombie hunter.
Replace any “to be” that is sucking action out of the text. Sure, “is” works fine in a thesis sentence to show something exists or equals something else (e.g.,“The Constitution’s system for Presidential elections is similar.”) But when the nominalizations lumber forth – especially as unnecessarily passive subjects – kill the zombies (e.g., “reapportionment . . . was effected”). Turn them back into verbs for your actors to perform (Tennessee reapportioned). If the best subject is not an actor, create a virtual character by deploying a real verb (“the Constitution lodges power”).
If you want to be read, make something happen.
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[ H/T SCOTUSblog ]
