Richard Re has a post on the Divided Argument substack identifying
what he suggests may be a relatively recent "writing tic[]" of
Supreme Court justices: the use of "to start" and "to
begin" in their opinions.
Re lists a few recent opinions and identifies
Justices who use this language. He goes on to list a few "observations and
caveats" regarding use trends and implications.
I have some thoughts on Re's post. To start (ha!), I'll
identify and discuss variations in the usages of these phrase that complicate an account of
them as a unified trend. Along the way, I share some comments and reactions to Re's
concerns.
Re frames usage of "to start" and "to begin" as a singular, irritating tic. But these phrases perform at least two roles--only one of which seems vulnerable to the critiques Re advances. Re appears to take issue with these phrases as excessive signposting, asking the reader to "[i]magine if every opinion included a gratuitous 'In conclusion,' or 'To end,'." These phrases are like the "to start" in the preceding paragraph: a likely unnecessary bit of verbiage indicating that the court is laying out a roadmap. Some of the examples Re identifies fit this mold, including Justice Alito's "to begin" in his Skrmetti concurrence, and one instance of "to start" in Justice Thomas's SFFA concurrence (specifically, the one on page 6 of Thomas's separate opinion).
I can see why Re might have a beef with this.
Cumbersome signposting adds unnecessary text to an opinion, and it may be a
crutch for writers who don’t want to take the time or effort to make their
writing flow naturally. Those who write law review articles on a routine basis
may be particularly irritated with these tics, as the Standard Form of the
article often requires a cumbersome roadmap at the end of the article
introduction.
Still, I’m not sure if I share Re’s distaste for the practice. Unnecessary signposting may make the opinion more accessible—even at the risk of some repetition or excessiveness in telling the reader where things are going. As an opinion to be read by members of the public (there are dozens of them!) and by busy attorneys, this can be helpful. Still, I get the critique of these usages.
But there's more going on here. The instances Re identifies include
different usages of the phrases. Specifically, "to start" and
"to begin" may be substitutes for "first" in a list of
arguments or other related points. We see this in Justice Kavanaugh's opinion
for the Court in McLaughlin:
That is the proper default rule for a variety of reasons. To begin, this Court has long recognized a “‘basic presumption of judicial review’” of agency action. (p. 8)
This seems to be distinct from the gratuitous signposting that prompts Re's criticism because "to begin" is doing more work here. Beyond the function of signaling the start of the Court's list of justifications for a rule (or, in other cases, multiple responses to an argument or claim), the phrase is a stand in for, "first," in setting forth that list. This double duty makes the phrase more useful than earlier instances of its usage. It also adds a bit of rhetorical variety to lists, allowing the writer to vary the presentation rather than repeating, “first,” “second,” “third,” and so forth every time. I don't think Re wants to criticize the use of listed arguments--after all, he includes a list of observations and caveats in his post.
Re ends with a curious point regarding the undesirability of “to start” and “to begin”:
Finally, this tic is particularly undesirable because it suggests a self-conscious performance. It makes the writer visible, and it also implies a planned routine, rather than fluid thought.
I’m not sure I agree. A Justice’s initial reasoning in thinking through the case, the result, and the general justifications for that result may involve fluid thought and reasoned judgment, but the process of setting that function into writing is distinct. Writing out the opinion ensures that the reasoning fits to the result, it involves the identification of missing steps or unrealized assumptions, and makes an effort to justify the result and its reasoning to the reader. Going through the writing process with a planned routine doesn’t seem like a bad thing.
Moreover, awareness that one is being watched, followed, and potentially critiqued by an audience should make the Justices self-conscious. The (accurate) expectation that readers will parse through and nitpick their opinions may motivate Justices to do a better job in developing those opinions, including pushing them to characterize precedent and other authorities correctly and incentivizing them to list the best justifications for the results reached. This hardly seems like a significant burden for actors with the power to decide the outcome of the cases before them—particularly those with final authority and life tenure.
