Thursday, December 10, 2009

"Pellucidly Clear"--at the Supreme Court, the NY Court of Appeals, & Elsewhere (An Impressive & Fascinating Pedigree)

Supreme Court Justice John Paul Stevens, New York Chief Judge Judith Kaye, California Supreme Court Justice Stanley Mosk, Federal 2d Circuit Judge Henry Friendly. They used it. "Pellucidly clear," that is.

[As this blog's erudite regular readers undoubtedly know, the phrase in question literally means transparently clearly clear.]

In the last post, I used it. With self-amusement, and self-consciousness. I also recalled having seen it used twice before. Both times in high court decisions. Once by a Judge on New York's highest court while I was clerking there. The other time in a recent Supreme Court opinion.

Sure enough, I plugged "pellucidly clear" into the legal research engines and voila! It was Judge Bernard Meyer in his 1986 opinion for the New York Court of Appeals in People ex rel Robertson v. State Div. of Parole. And it was Justice Stevens in his concurring opinion last year in Baze v. Rees.

Then I broadened the search and what emerged was very interesting. Even fascinating There is quite an impressive judicial pedigree to the use of "pellucidly clear." This felicitous redundancy has an extraordinary list of partisans.

Let's get right to it. First, at the Supreme Court.
"Pellucidly Clear" by the Supremes

(click open to enlarge)
"Pellucidly clear" appears in 16 cases in Supreme Court history. Its vintage at the Court is quite recent. It was first used in the 1980 decision in Thomas v. Washington Gas Light Co. Writing the Court's opinion, Justice Stevens said of the issue to be resolved: "The answer to this question is pellucidly clear."

And thus began the Supreme Court's --actually Stevens'--veritable love affair with the phrase. It was Stevens, the leader of the Court's liberal wing, who used it in every one of the 16 cases.

Justice Antonin Scalia, the Court's most outspoken conservative, did use the phrase in one of those cases. He did so in his 2007 dissent in Zuni Pub. Sch. Dist. v. Dept. of Educ. But he was only mimicking Stevens who had used the phrase in the majority opinion. So it's clear that Stevens' use was serious, while Scalia's was pellucidly sarcastic.

What about the state supreme courts? Well take a look.
"Pellucidly Clear" in the State Supremes

(click open to enlarge)
"Pellucidly clear" has been used in 14 decisions by state supreme courts. It's a pretty strong collection of courts. Certainly, the New York Court of Appeals and the California Supreme Court have historically been among the most influential judicial tribunals in the country.

Indeed, there is no little unspoken competition between those 2 as to which has had a greater impact on torts, contracts, criminal investigation and adjudication, and other areas of the law. And in the last several decades, which court has been more a leader in taking an independent course from the rightward direction of the U.S. Supreme Court in constitutional rights and liberties.

In "pellucidly clear"cases, however, New York is the unquestionable leader among state high courts. Its 6 cases are double the number of California's.

On the other hand, the Wisconsin Supreme Court, with just 1 "pellucidly clear" case to its name, is the first state high court to use the phrase. In the 1971 decision in State v. I, A Woman, Justice (later Chief Justice) Nathan Heffernan put one of the issues in the case to rest as follows: "it [is] ‘pellucidly clear’--to quote a favorite phrase of the appellant district attorney--that obscenity is not within the area of constitutionally protected speech or press." It's also pellucidly clear that the phrase was not one of Heffernan's favorite but, like Scalia years later in Zuni, he was using it for chiding effect.

And who were the other users on the state supreme courts?
"Pellucidly Clear" by State Supremes

(click open to enlarge)
Again--as with the state courts themselves--this is a pretty strong collection. New York's Judge Meyer, who was mentioned earlier, is the champ here.

He was a brilliant Judge, both on the trial bench and on the Court of Appeals, where he acknowledged himself an avowed activist in trying to do justice. (Unfortunately, his tenure on the high tribunal was cut to a short 7 years by the state's moronic law mandating retirement from the court at age 70. But that's a whole 'nother matter.)

In 2d place is California's Stanley Mosk. One of the nation's most venerable and beloved judges of the past century, his 37 year tenure is the longest in the state Supreme Court's history. Mosk's opinions influenced the development of virtually every area of the law dealt with in America's state courts. He was also an early and persistent influence on the state courts and their justices nationwide in developing state constitutional jurisprudence independent of U.S. Supreme Court case law.

In 3d place on the "pellucidly clear" list is New York's Judith Kaye. She served on the state's highest court, for more than a quarter century, and as its Chief Judge for 15 years--the longest in New York history. Beyond that, Kaye earned a reputation as a scholar, an administrative reformer, one of the nation's leading advocates for independent state constitutional decision-making, and--oh, almost forgot to mention--she was the first woman to sit on the New York Court of Appeals and the first woman Chief Judge. Not surprisingly, Kaye (who was a victim of that moronic state retirement law last year) was one of the nation's most prominent and admired judicial figures in the United States.

Not too shabby for "pellucidly clear" so far, huh?

Now let's check out the U.S. Courts of Appeals--the circuit courts. First, look at the total number of cases in which our fast-becoming favorite phrase was used in those courts.
"Pellucidly Clear" in the U.S. Circuit Courts

(click open to enlarge)
"Pellucidly clear" has been used by the federal appeals courts in 103 cases. But in no less than 40 of those, the use was actually a direct quote or a reference to Justice Stevens' use of the phrase in Gall v. U.S. (He wrote the majority opinion in that 2007 case dealing with the proper consideration of federal sentencing guidelines--a matter frequently reviewed by the circuit courts.).

That leaves 63 "pellucidly clear" cases not merely parroting Stevens. So how do the individual circuits stack up on these?

Take a look.

"Pellucidly Clear" by Circuit Court

(click open to enlarge)
The U.S. Court of Appeals for the 1st Circuit, sitting in Boston, leads the pack. The 4th Circuit in Richmond, Virginia, and the 2d Circuit in New York City complete the top "pellucidly clear" trio.

But the 9th Circuit, sitting in San Francisco, has the distinction of using the phrase first. It also has the distinction of having an extraordinarily distinguished judge use it that time. The case was Johnson v. Gardner, a 1950 bankruptcy appeal. The judge, Paul McCormick, was actually a trial judge in federal district court in southern California. Later in his career, however, he would be asked to sit by designation on the circuit court.

His use of the phrase--that first use in circuit courts--was unexceptional. ("It is pellucidly clear... that the action in the District Court was entirely and essentially one of equit[y]") But he was anything but that. Among this Calvin Coolidge appointee's legacies is his decision in Mendez v. Westminster Sch. Dist. In that 1946 case--a trial over which McCormick presided--he ruled that California's "separate but equal" schools for Mexicans violated constitutional equal protection.

The 9th Circuit affirmed his decision and Governor Earl Warren then signed legislation repealing the state's system of segregated schools. Of course, 8 years after McCormick's ruling in Mendez, the same Earl Warren was Chief Justice of the Supreme Court, and he wrote the decision in Brown v. Bd. of Ed. ending "separate but equal" for the entire country.

McCormick used "pellucidly clear" only once as a federal appeals judge. So who were the all-time leaders.
"Pellucidly Clear" by Federal Appeals
(click open to enlarge)
Justice Stevens beats all the circuit judges. But Bruce Selya of the 1st Circuit used "pellucidly clear" in only 1 fewer case. No one else is close.

Having served 20 years on the 1st Circuit, Judge Selya is currently on senior (semi-retired) status. At the same time, however, he is the presiding judge of the U.S. Foreign Intelligence Surveillance Court of Review. Considered one of the American judiciary's most erudite writers, he is among a handful of the most cited federal judges.

After Selya comes Per Curiam opinions out of the 5th Circuit, which sits in New Orleans. Most of these 5 unsigned opinions are summary rulings insisting that the court is bound to follow Supreme Court precedent, even if it is "pellucidly clear" that the Supreme Court itself would no longer follow it. (Hardly one of the highlights of the "pellucidly clear" catalogue.)

Then comes Judge Thomas Ellis who used "pellucidly clear" in 4 cases. Like Judge McCormick, Ellis is actually a federal trial judge who is sometimes asked to sit on an appellate court. He has sat on both the 3d Circuit in Philadelphia and on the 4th in Richmond. This trial judge from the the eastern district of Virginia is a former Naval aviator, and in recent years he has presided over some espionage, terrorist, and national security cases that were in national headlines.

Then there's Francis Murnaghan of the 4th Circuit. Prior to his death a few years ago, he was a forceful and widely-admired liberal voice on a court that had become one of the nation's most conservative benches. A prolific writer of dissenting and concurring opinions, he authored hundreds of such separate opinions taking issue with his colleagues.

The remaining 2 judges depicted in the graph--the remaining federal appeals judges who have used "pellucidly clear" more than once, and not just quoting someone else--are widely recognized as 2 of the federal bench's brightest stars. Judge Robert Katzmann of the 2d Circuit is a political scientist (PhD, Harvard) and lawyer (JD, Yale). Prior to his appointment to the 2d Circuit, he was a fellow at the Brookings Institution and a professor of government, law and public policy at Georgetown.

Judge Diane Wood of the 7th Circuit, which sits in Chicago, seems to be on everyone's short-list for the Supreme Court. Her career in academia and government has included a clerkship with Supreme Court Justice Harry Blackmun, a position as an assistant attorney general in the justice department, professorships at both Georgetown and Chicago (where she was associate dean and still teaches), as well as the authorship of an extensive body of legal scholarship. As a judge on the 7th Circuit, she is viewed as a brilliant liberal counterweight to conservative judicial giants Richard Posner and Frank Estabrook.

Finally, mention must be made of Henry Friendly. Following Judge McCormick's use of the phrase in 1950 [see above], Friendly was next in the 1973 2d Circuit case of Blanton v. S.U.N.Y.

He did use "pellucidly clear" in only one case. But he was the second federal appeals judge to do so, and he was Henry Friendly.

One of the most revered judges to sit on the federal bench, his name was repeated frequently as Chief Justice John Roberts's mentor--the latter having clerked for Friendly. The transparent--better yet, pellucid--purpose being to suggest a favorable comparison.

As one commentator recently wrote in addressing that attempt: "Comparing any judge to Henry Friendly is like comparing any basketball player to Michael Jordan." (Robert Gordon, Slate Magazine.) Or as Justice Felix Frakfurter put it while Friendly was still on the bench: he's "the best judge now writing opinions on the American scene." (Of course, the anything-but-humble Frankfurter had already retired from the Supreme Court, so he was certainly not placing himself below Friendly.)

Following Friendly's death in 1986, Chief Justice Warren Burger said, "I have never known a judge more qualified to sit on the Supreme Court." [Of course, like most of the best, he never made it.] And the esteemed Judge Jon Newman, of Friendly's own 2d Circuit, called him "quite simply the pre-eminent appellate judge of his era."

Yep, that was Henry Friendly. And he used "pellucidly clear." Add to him the other judicial luminaries discussed in this post and you have a veritable pantheon. An extraordinary list of judges who have smiled favorably upon that appealing redundancy.

Stevens, Meyer, Mosk, Kaye, McCormick, Selya, Ellis, Murnaghan, Katzmann, Wood, and Friendly!!

That is some impressive judicial pedigree. And that's good enough reason to go ahead, use "pellucidly clear," and be proud!