By Justin goodman
By now, everyone has heard about the Supreme Court’s last three rulings prior to its summer recess. Likely what excited people most was the court’s decision in Whole Woman’s Health v. Hellerstedt, which struck down two specific demands of the Texas legislature’s bill HB 2. Under this bill, abortion clinics were required to have both doctors with admitting privileges and architecture similar to an ambulatory surgical center (including, infamously, hallway-width), or risk being shut down. 33 of 40 did. Perhaps these same people have also seen (on Facebook’s news sidebar and other go-to sources) the bribery case, McDonnell v. United States, and the domestic violence/gun ownership case, Voisine v. United States. To those less interested, they are simply legally binding determinations of an unknown value. But these rulings are guided by the core principles of great writing: an attention to words, not merely as sentence and cadence, but as discrete units of reference. Pedantry to some, necessity to all.
If you’re rusty on the proceedings: after a case is brought before the Supreme Court (SCOTUS), it issues a majority opinion that is then signed onto by agreeing justices; generally, there’s a dissenting opinion, sometimes a concurrence with its own points to make, and sometimes multiple of each. SCOTUS’ majority decisions set precedents for future courts, becoming case law, which even the future Supreme Court must then consider. The concept of an “undue burden” on a woman’s right to an abortion, as referred to in Whole Woman’s Health, for instance, was established as precedent for abortion cases in 1992’s Planned Parenthood v. Casey. Writers will have similar experiences in either reconsidering old phrases—like Max Porter's Grief is the Thing With Feathers, in homage of Emily Dickinson's "Hope," or with words like Lilliputian (from Jonathan Swift)—invoking context. Whether one might see this lexical intensity as either mystical or lilliputian, it remains true that every word creates mental structures that great writers consciously depart from. It’s how Porter and Swift confront the world in satire and aesthetics. All a writer does, after all, is appropriate.
Voisine v. United States centers around two men with charges of domestic abuse charged with violating legal code §922(g)(9). This resulted in banning individuals convicted of “a misdemeanor crime of domestic violence” from owning firearms. As Justice Kagan, writing for the majority, explains:
In Castleman, we initially held that the word “force” in §921(a)(33)(A) bears its common-law meaning, and so is broad enough to include offensive touching. See id., at ___ (slip op., at 4). We then determined that “the knowing or intentional application of [such] force is a ‘use’ of force.” Id., at ___ (slip op., at 13). But we expressly left open whether a reckless assault also qualifies as a “use” of force—so that a misdemeanor conviction for such conduct would trigger §922(g)(9)’s firearms ban. See id., at ___, n. 8 (slip op., at 11, n. 8). The two cases before us now raise that issue.
A previous ruling, United States v. Castleman, defined the word “force” and avoided clarifying the meaning of the word “use” in regards to intention. The following 10 pages are meant to clarify the relationship between intention and “use” through precedent and context (For the curious, the central analogy is of a husband and a dish: If a man who just washed his hands drops a plate and the shards of which then cut his wife, he hasn’t “‘used’ physical force in common parlance”; it counts when an angry husband throws a plate at his wife because there is an “awareness of a substantial risk of causing injury”).
Maureen McDonnell, wife of the mayor, asked the Virginia businessman Jonnie Williams for a $50,000 loan and a $15,000 gift for the wedding of Maureen and Robert’s daughter. A year later, Williams gives a Rolex to Maureen to give to Robert as a present. Depending on who tells you the story, the mayor either knew about it or didn’t know about it. Depending on who tells the story, the mayor went on to push for studies on Star Scientific’s (Williams’ company’s) nutritional supplement, anatabine. Without FDA approval granted from such a study, it could not be sold as an anti-inflammatory. When it was first brought before Dr. Hazel, Virginia’s Secretary of Health and Human Resources, they had sufficient doubts to warrant assisting the necessary studies in getting done. This was before the $65,000 and before the watch, when the most Williams did for the McDonnells was lend his jet for the campaign trail and offer to buy a gown for Maureen McDonnell (who was advised not to take the gown).
Inevitably, the federal government arrested them on bribery charges. They were accused of committing five “official acts” which, reduced to their bones, were: “arranging meetings,” “hosting, and...attending events,” “contacting other government officials,” “promoting Star Scientific’s products and facilitating its relationships,” and “recommending senior government officials meet with Star Scientific executives.” Maureen and Robert were convicted by a jury on these grounds. SCOTUS heard the case on appeal.
At stake is—much like “use” in Voisine—notions of what constitute “official acts” defined under 18 US Code §203 as “any decision or action on any question, matter, cause, suit, proceeding or controversy.” Chief Justice Roberts, writing the unanimous opinion of the court:
None of this, of course, is to suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it. But the Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money, and we cannot construe a criminal statute on the assumption that the Government will “use it responsibly.”
If it sounds unreasonable to be under suspicion of bribery because you’re “arranging meetings” between the state Secretary of Health and a local health product businessman, that’s because, as Roberts says, it is. He further borrows a phrase from the referenced case, United States v. Stevens, that really hits home to how aesthetically pleasing the precise metaphor can be— “a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” It is with the very same linguistic considerations that a writer should craft a sentence. When is your word choice butchery, and when is it surgery?
“Many of the justices admit to linguistic pet peeves.” This NPR story (while not useful news in itself) is significant because it illustrates that to connect jurisprudence with literature is to identify the relationship between semantics, syntax, and the contexts regulating the morality implied by it. That’s why I love Justice Breyer’s clarity in the Whole Woman’s Health opinion. The disagreement between the justices in this case centers on The Restatement (Second) of Judgments wherein “material operative facts occurring after... with respect to the same subject matter... may be made the basis of a second action not precluded by the first.” Breyer’s example is as follows:
Imagine a group of prisoners who claim that they are being forced to drink contaminated water. These prisoners file suit against the facility where they are incarcerated. If at first their suit is dismissed because a court does not believe that the harm would be severe enough to be unconstitutional, it would make no sense to prevent the same prisoners from bringing a later suit if time and experience eventually showed that prisoners were dying from contaminated water… Factual developments may show that constitutional harm, which seemed too remote or speculative to afford relief at the time of an earlier suit, was in fact indisputable.
To “consciously depart from” previous notions is not to disagree. I emphasize this here, not because it is a last-minute thought, but because Breyer’s rendering of the The Restatement is not a disagreement. “Departing from” is the same act regardless of whether you’re departing from a distant country or from your own; it is always leaving and always moving towards, irrespective of direction. What Breyer models is referential consciousness. Why discuss “a group of prisoners” in a case about abortion facilities? Both are villainized, and both are trapped within a dichotomy. You’re either hard on crime or soft on crime, either pro-choice or pro-life; literary critic Fredric Jameson might call this broken dialogue or “the prison-house of language,” which he examines in his book of the same name.
The ironic nature of writing: The closer you are to the end of a sentence, the fewer meanings there are available to that sentence. Yet, on a larger scale, as much as it discloses certain meanings (Breyer’s), writing refuses them too (Alito’s dissent, which Breyer calls “simply wrong”). It is important to remember that a sentence is not merely words, but also the constitutive value that those words are given by their abundance of contexts. A writer’s impossible task is to parse this infinity for a universal code.
With that dour prescription that is itself limited by every factor of lived life that exists to pressure us into sailing between dualisms, given that even the value of this essay is dependent on a word or two you may find too pretentious, too coy, too wheedling, I want to conclude with Notorious RBG’s concurrence in Whole Woman’s Health. It is so full of certainty and power that, regardless of where you stand on qualifying language, it is brilliant. It is, in her own words, the precarious and brilliant light of “rational belief”:
Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements... (all District Courts to consider admitting-privileges requirements found abortion “is at least as safe as other medical procedures routinely performed in outpatient settings”). Given those realities, it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions”... When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.
Justin Goodman is the Assistant Fiction Editor of Boston Accent Lit. Take a look at his website here.