Monday, July 10, 2006

Linda Greenhouse Summarizes the Supreme Court

Linda greenhouse is a redoubtable writer: a meat-and-potatoes slogger who gets information across with doughty determination.

Her signal fault consists of tin-ear overuse of commas with restrictive elements and lapsing too often into passive verbs. Her sentences run long—she thinks nothing of productions of over fifty words; but her solid grasp of structure usually renders them clear.

The Times is lucky to have her in this Supreme Court slot. She has a writing style that triumphs over that dry job.

I have read some of Scalia’s opinions. He has the reputation of being the court’s intellectual light but displays a narrow beetle brow to dispute that fame. He plainly considers himself a wit. Scalia’s idea of an adroit riposte consists of calling some reporter’s intelligence into question with street-argot linguistic thuggery such as “Ya gotta be kiddin’!”

Greenhouse outwrites this Court windbag to a faretheewell.

If La Greenhouse pulls back on overuse of commas and passive verbs, she will go to grammar heaven.

Roberts Is at Court's Helm, but He Isn't Yet in Control

Published: July 2, 2006

WASHINGTON, July 1 — As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

This comma cuts off a restrictive adverbial prepositional phrase modifier.

His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way.

A comma goes after “opinions” for the compound sentence. Dump a redundant “frustration” or “pique.”

The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been "improvidently granted" — they should not have agreed to decide it — in the first place.

The “over…justices” is restrictive: no commas.

So if it wasn't yet the Roberts court, what exactly was it?

“Wasn’t” should be “weren’t” if the newspaper preserves the protocol of subjunctive mood.

If none of these labels — Roberts court, Kennedy court, Stevens court — seem to fit precisely, it is probably because the Supreme Court really was in its 2005-6 term was a court in transition.

Delete redundant adverbs and "was."

Redundant adverbs: Strunk & White warns against adverbs. Graham Greene hated them. He wrote spare, elegant sentences. Even so, I don’t like him because he exploited women. Proust tortured rats, but I hold no grudge against him for that vile activity. I am not a partisan of rats but of women.

The Court’s being in transition in this term made none of the labels-- Roberts court, Kennedy court, Stevens court--fit precisely.

I have recently read grammar god George Curme on gerunds. If I understand him rightly, a transition begun in the old English period moved over time to not using genitive as the subject of the gerund if the subject is not alive (as in the case of “court”); in that case, one uses accusative as the subject, not genitive. I don’t insist on this distinction because I am still learning about it. But Greenhouse uses “court” as subject two ways in this wrap-up piece: one genitive, one accusative. I submit that she should be consistent. She can read Curme herself in the Syntax II volume and then explain his gerund lore to me. The experience can’t be any worse than reading those Court opinions.

The term's early period of unanimity, during which cases on such contentious subjects as
abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground.

A passive verb rarely improves a sentence. When a writer of Ms. Greenhouse’s tendency to long sentences employs it, a passive verb further vitiates the thrust of the sentence.

“…during which the court dispatched contentious subjects such as abortion and federalism quickly…”

The term’s early unanimity saw the court agree with narrowly phrased opinions on such contentious issues as abortion and federalism. This unanimity reflected agreement not on the underlying principles but on the wish to move on without bogging down in the fruitless search for common ground.

This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.

The reference of the demonstrative pronoun “This” is muddy; Ms. Greenhouse would aid clarity by replacing it with a noun.

Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away.

The “after” adverbial prepositional phrase is restrictive: no commas should surround it.

A separate analysis, by the Supreme Court Institute at Georgetown University Law Center, showed that Justice Alito and Chief Justice Roberts had the highest agreement rate of any two justices….

The “by” adjectival prepositional phrase is restrictive: no commas.

The court decided 69 cases with signed opinions in the term that began on Oct. 3 and ended on June 29. Nearly half were decided without dissent, a greater number than usual, although not dramatically so. Sixteen cases were decided by five-justice majorities, either 5 to 4 or 5 to 3, a proportion very close to the 10-year average.

"The court decided nearly half...." "Five-justice majororities decided sixteen cases...."

One measure of the court's shift to the right is in dissenting votes. In the previous term, the justice who dissented least often was Stephen G. Breyer, who dissented…

“In” and “often” are redundant. The passive verbs in the previous paragraph don’t help style or clarity.

With the court having indicated in Hamdan v. Rumsfeld, the military commission case, that lawsuits now pending in the lower courts on behalf of dozens of detainees at Guantánamo Bay, Cuba, are still alive, the justices are likely to have further opportunities to address the profound issues of presidential power and judicial authority that these cases raise.

This 57-word sentence illustrates Ms. Greenhouse’s propensity to long sentences. She should split this sentence to help the reader. Here Ms. Greenhouse uses the accusative as subject of the gerund; above she used the genitive.

The court was unanimous in ruling that inmates facing execution by lethal injection can invoke a federal civil rights law to challenge the state's choice of drugs and the manner in which they are administered. The decision, Hill v. McDonough, No. 05-8794, opened the door to lawsuits that would be prohibited by tight restrictions on petitions for habeas corpus. Justice Kennedy wrote the opinion.

“The Hill ……8794” is a restrictive appositive and gets no commas. Ms. Greenhouse sometimes uses “this” before an appositive construction like this one. But whether preceded by "this" or "the," putting the general noun first, then the proper noun makes the proper noun a restrictive appositive. An active verb would be better than “would be prohibited”: “that tight restrictions would prohibit…”

The court ruled 5 to 3 that new evidence in a Tennessee murder case, including DNA evidence, sufficiently undermined the prosecution's theory of the case to require a new federal court hearing for the man who was convicted and sentenced to death for the crime 21 years ago.

“Including DNA evidence” is restrictive: no commas.

The case, House v. Bell, No. 04-8990, was the first in which the court factored the results of modern DNA testing into consideration of whether a prisoner might qualify for a chance at habeas corpus that would otherwise be prohibited by procedural obstacles.

“House …8990” is restrictive and merits no commas. "That otherwise procedural obstacles would prohibit."

The court ruled 6 to 3 that foreign criminal defendants who have not been notified of their right under an international treaty to contact one of their country's diplomats are not entitled to special accommodation from courts in the United States. The decision, Sanchez-Llamas v. Oregon, No. 04-10566, rejected claims brought under the Vienna

“Sanchez….10566” is restrictive appositive and merits no commas except the one after "Oregon."

The court considered defendants' rights to cross-examine the state's witnesses, a right protected by the Confrontation Clause of the Sixth Amendment, in a pair of cases that were decided in a single opinion by Justice Scalia.

Passive verb: “…that a single opinion by Justice Scalia decided in a pair of cases.”

In the first part of the opinion in Davis v. Washington, No. 05-5224, the court was unanimous in ruling that a crime victim's emergency telephone call to 911 can be introduced as evidence at trial, even if the victim is not present for cross-examination, because a call to 911 does not produce the kind of "testimonial statement" to which the Confrontation Clause is addressed.

No commas around “even…”: it’s restrictive.

The court then went on to hold, by a vote of 8 to 1, with Justice Thomas dissenting, that a crime victim's statement to police officers who arrive at a scene should be considered "testimonial" if the police are investigating the crime rather than providing emergency assistance.

The “by…dissenting” and "with Justice..." are restrictive: no commas.

In another Sixth Amendment case, on the right to the assistance of counsel, the court ruled 5 to 4 that defendants who are wrongly deprived of the right to hire a lawyer of their choice are entitled to have a conviction overturned without the need to show that the first-choice lawyer would have achieved a better result. Justice Scalia wrote the opinion in the case, United States v. Gonzalez-Lopez, No. 05-352, joined by Justices Stevens, Souter, Ginsburg and Breyer.
The “on” adjectival prepositional phrase is restrictive: no comma.

The “case...352” appositive is restrictive: no commas except the one after "Lopez."

Government Authority

No statute authorized the attorney general to take such action unilaterally contrary to "the background principles of our federal system," Justice Kennedy said in the majority opinion. The decision, Gonzales v. Oregon, No. 04-623, was a rebuff of the Bush administration, which had embraced Mr. Ashcroft's personal fight against assisted suicide and carried on the case after he left the government.

The restrictive appositive “Gonzales…” gets no commas except the one after "Oregon."

Justice Alito was not yet on the court when the case was decided, with Justice O'Connor in the majority, on January 17.

The adverbial prepositional phrase “with…” is restrictive: no commas.

A pair of decisions on the question of state immunity from suit, also issued in January, before Justice Alito joined the court, gave strong indications that the Rehnquist court's federalism battles were far from over.

This sentence merits no commas. The adjectival “also” prepositional phrase and the adverbial “before” prepositional phrase are restrictive.

But the unanimity was achieved only because the court limited the decision, Goodman v. Georgia, No. 04-1203, to little more than the statement of a truism: that Congress has the power to make the states liable to lawsuit when they violate the Constitution.

"The court achnieved the unanimity...." A restrictive appositive warrants no commas.

In this case, the inmate claimed that his mistreatment had been so egregious as to violate not only the disabilities law, but also the Constitution. Justice Scalia's opinion said that to this extent, the lawsuit could proceed.

Don’t use commas with correlative not only…but also. “To this extent” should have two commas because the writer moves it from its normal adverbial syntactical position of the end of the sentence to the middle.

The court ruled that as a matter of constitutional due process, the government must take reasonable steps to make sure that homeowners have been notified before it sells a house for nonpayment of taxes.

"…to make sure it notifies the homeowners…"

The justices ruled 7 to 1 that the Postal Service may be sued by people who trip over packages that letter carriers have carelessly left in their path. The majority opinion by Justice Kennedy in this case, Dolan v. United States Postal Service, No. 04-848, was based on an interpretation of the Federal Tort Claims Act, not on the Constitution.

Ridding these sentences of passive verbs would improve them.


The court split 4 to 1 to 4 in the case, Rapanos v. United States, No. 04-1034, with Justice Kennedy in the middle.

No commas with a restrictive appositive

The other foursome, Justices Stevens, Souter, Ginsburg and Breyer, would have deferred to the longstanding judgment of the
Army Corps of Engineers that a "wetland" can often appear dry and can be miles from a body of water, as long as it sometimes performs a filtering or runoff-control function.

The trailing adverbial clause is restrictive: no commas.


The tea, known as hoasca, is central to the sect's rituals, Chief Justice Roberts noted in his opinion for the court. He said the government had not met the religious freedom act's demanding standard for applying a generally applicable law — federal narcotics law, in this instance — in a way that impinges on religious observance. Justice Alito did not participate in the case, Gonzales v. O Centro Espírita Beneficente União do Vegetal, No. 04-1084.

The past participial phrase is restrictive: no commas; “Gonzales…” is a restrictive appositive: no commas.


The law, known as the Solomon Amendment, was challenged by a coalition of law schools that objected to the military's exclusion of openly gay men and women. The law schools argued that their First Amendment rights to free speech and association had been violated by the requirement that they open their doors to military recruiters.

The past participial phrase is restrictive. A better sentence would use an active verb: “A coalition of law schools challenged the law known as the Solomon Amendment…”

“The schools argued that the requirement to open doors to military recruiters violated…”

Justice O'Connor wrote the decision in the case, Schaffer v. Weast, No. 04-698.

No comma before a restrictive appositive

Employees' Rights

Justice Breyer wrote the opinion in the case, Burlington Northern & Santa Fe Railway Company v. White, No. 05-259, which interpreted the anti-retaliation provision of the Civil Rights Act of 1964.

No comma before the restrictive appositive “Burlington….”


The justices papered over, at least for this term, their fundamental differences on abortion, ruling narrowly and unanimously in a case from New Hampshire on access to abortion for teenagers facing medical emergencies. In an opinion by Justice O'Connor, her last before leaving the bench, the court reaffirmed that a medical-emergency exception was constitutionally required in a law that placed obstacles, like a parental-notice requirement and a waiting period, in the path of teenagers seeking abortions.

The flagged phrases are restrictive: no commas.

The more difficult question in the case, Ayotte v.
Planned Parenthood of Northern New England, No. 04-1144, was that of what to do about New Hampshire's failure to include such an exception in its parental notice law.

Restrictive appositives get no commas.

That "most blunt remedy" would be justified, Justice O'Connor said, only if it was clear that New Hampshire's legislature, which enacted the law in 2003, would have preferred no law at all to one with the necessary health exception.

Is the subjunctive mood abandoned by this newspaper? I can’t find my NY Times style book to see what the official position is at the paper if the style book deals with it; but Garner’s authoritative A Dictionary of Modern American Usage says clauses of supposition remain in the subjunctive mood in Standard English. Unless The Times has abandoned subjunctive-mood civility in language, “was” should be “were.”


In a unanimous opinion by Justice Thomas, the justices instructed the appeals court to make a case-by-case determination rather than apply an automatic injunction rule. But the opinion, eBay v. MercExchange, No. 05-130, left it unclear what presumptions and factors should go into that determination, and it was evident that the justices themselves had not agreed on a standard.

Restrictive appositives get no commas.

Logic suggests that the names of Supreme Court cases shoud get italics. But in this narrative, they do not.


Blogger Matt said...

“Sanchez….10566” is restrictive appositive and merits no commas except the one after "Oregon."

Nice four-dot ellipsis.

5:41 AM  
Blogger Matt said...

>Is the subjunctive mood abandoned by this newspaper?<

Say, that's passive voice, isn't it?

Has this newspaper abandoned the subjunctive mood?

Yes, that's better; much more active.

7:22 PM  
Blogger Matt said...

Sorry. I changed tense.

Does this newspaper abandon the subjunctive mood?

Still, either is better than your passive solecism.

7:27 PM  
Blogger twinkobie said...

Dear Sharp Grammar Cookie:

Passive verbs are not solecisms; they are flaccid style. One or two passive verbs in a piece of writing are ok. We don't want to be fascists.

Good eye on the extra period in the ellipsis.

I like worthy adversaries. They keep me alert. lee

4:13 PM  

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