The Memetics of SCOTUS Writing Tropes

A response to Richard's post about writing tics in Supreme Court opinions.

I enjoyed Richard’s post about “To begin” as a recurring “tic” in Supreme Court opinions. It suggested a question that’s always interested me about Supreme Court opinions and advocacy: how do recurring writing tropes propagate through the Supreme Court bar and bench?

My sense is that particularly influential justices and SCOTUS advocates start using particular stylistic touches or formulations, and then others see them, like them, and copy them in their own opinions and briefs, and eventually what started out as sharp stylistic flourishes turn into tired clichés. In this way, particularly influential SCOTUS/appellate litigation tastemakers can be thought of as generating rhetorical memes.

The most prominent example that comes to mind is the proliferation of “Not so” as a standalone sentence in briefs as a way to quickly dismiss the other side’s arguments. I remember first discovering that after reading a brief by one of the titans of the SCOTUS bar (I can’t remember which, though it may have been Paul Clement) early in my legal career. Realizing that that move—which sounded pretty informal to my green ears—was in bounds was a revelation, and I imagine many or even most of my early-career briefs straightforwardly copied it. And I’m sure that others who read a lot of SCOTUS briefs have the same impression of that phrase.

There are many other examples, I think. The one that comes to mind most immediately for me is the aggressive use of italics pioneered by Justice Scalia, which influenced at least a whole generation of legal writers.

What other examples can you think of? Point them out in the comments!