(Photo
by
Getty)
Justice
Scalia
left
a
lot
of
legacies
behind
him.
Mostly
precursors
of
an
American
hellscape
and
the
degrading
of
his
office
by
way
of
childish
insults.
But
he
also
happened
to
be
a
clever
writer,
sprinkling
idiosyncratic
terms
like
“argle-bargle”
or
“pure
applesauce”
and
“jiggery-pokery”
into
the
wordsmithing
he
performed
deep
within
the
heart
of
Mount
Doom.
The
jiggery-pokery
effort
even
spawned
a
fun
little
hashtag
contest
back
in
the
day!
And
if
there’s
one
thing
you
can
say
about
the
whole
Federalist
Society
superstructure,
it’s
that
they
all
fancy
themselves
as
the
next
Scalia
and
aren’t
afraid
to
think
of
their
opinions
as
Scalia
fan-fic
—
laboring
over
exactly
what
the
late
justice
would
say
if
HE
were
writing
this
opinion
legalizing
stoning
gay
people.
Since
Justice
Alito
has
clearly
taken
up
the
mantle
of
disgracing
the
institution
with
insults,
Neil
Gorsuch
had
to
find
his
own
lane
and
seems
to
have
landed
on
eccentric
turns
of
phrase.
This
article
published
in
Massachusetts
Lawyers
Weekly
explores
all
the
rhetorical
choices
of
Dobbs
and
West
Virginia
v.
EPA.
The
whole
piece
is
interesting,
but
the
analysis
happens
to
reveal
that
Justice
Gorsuch
introduced
a
new
concept
to
the
legal
landscape.
In
his
concurring
opinion
in
the
same
case,
Justice
Neil
M.
Gorsuch
intriguingly
used
a
phrase
that
has
not
appeared
in
any
other
reported
judicial
decision
–
and
that
does
not
quite
make
sense.
He
wrote,
“[T]he
Constitution
does
not
authorize
agencies
to
use
pen-and-phone
regulations
as
substitutes
for
laws
passed
by
the
people’s
representatives.”
Oh,
Chevron
it
up
your
ass,
Neil.
The
new
term
seems
to
be
a
derisive
nod
directed
at
President
Obama
who
said
“I’ve
got
a
pen,
and
I’ve
got
a
phone”
in
response
to
recalcitrant
GOP
legislatures.
In
other
words,
even
though
Congress
would
stymie
Obama’s
legislative
agenda,
he
still
had
other
limited
powers.
Gorsuch
apparently
sees
this
jab
as
legalistic
red
meat
for
the
FedSoc
crew.
But
as
legal
writing
expert
Ken
Bresler
notes:
If
a
president
uses
a
pen
to
issue
an
executive
order,
that
is a
regulation.
It’s
a
regulation
issued
by
the
White
House.
And
a
president
using
a
phone
to
convene
problem-solvers
does
not
constitute
issuing
a
regulation.
In
this
case,
contrary
to
Gorsuch’s
framing,
no
regulations
were
issued
“as
substitutes
for
laws
passed
by
the
people’s
representatives.”
In
fact,
the
people’s
representatives
explicitly
authorized
the
agency
to
make
these
regulations
so
it
wasn’t
“substituting”
anything.
So
Justice
Gorsuch
invented
a
new
term
to
cast
aspersions
on…
completely
legal
activities?
Everyone
knows
about
repeating
a
lie
often
enough,
but
just
as
importantly
it’s
a
lot
easier
to
repeat
a
lie
when
you
give
it
a
shiny
new
linguistic
coat.
But
at
least
he
gets
points
for
saying
it
first.
Sharp
Words,
Unclear
Terms
From
Supreme
Court
[Clear
Writing
Co.
in
Mass.
Lawyers
Weekly]
Joe
Patrice is
a
senior
editor
at
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the
Law
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co-host
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Thinking
Like
A
Lawyer.
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