The Scrivener

• Publication year: 2021
• Pages: 60

The Scrivener Vol. 32 Issue 6 Pg. 60 South Carolina Bar Journal May, 2021

Dear Scrivener

By Scott Moïse

Three years have passed since the last “Dear Scrivener,” my personal legal writing and grammar advice column, and the Scrivener mail bag and inbox are over capacity. Actually, these days most questions come in by telephone or somebody showing up at my office door—and none of them calling me “dear”— but a question is a question, and I will give you some of my recent favorites.

Dear Scrivener: I'm a Bluebook nerd, and I saw that Justice Clarence Thomas made up a new citation rule that is not in the Bluebook! He just made it up! See Brownback v. King, 141 S. Ct. 740, 748 (2021) (making up a new explanatory phrase).

What do you think?

--Chelsea E.

ANSWER:

For some background for readers who have not heard, Justice Thomas likely was tired of going through the grammatical contortions the Bluebook requires when making changes to statements we are quoting: rules requiring brackets, ellipses, quotation marks, and altered capital letters. I understand the frustration. It takes time, and if a lot of changes are made, the sentence is barely readable. So, Justice Thomas did something about it in Brownback. He quoted another case on the issue of res judicata and did not show where he made the alterations! Instead, he simply added a parenthetical at the end of the case citation that said, and I quote, “cleaned up.” Excuse me while I retire to the fainting couch! Just kidding. We already knew that the Supreme Court has its own citation rules, which frequently conflict with the Bluebook. However, I wonder if this new citation form may have gone too far.

To understand what happened, we need to look at the original quotes that Justice Thomas included in his opinion from Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-02 (2001):

The original connotation of an “on the merits” adjudication is one that actually “pass[es] directly on the substance of [a particular] claim” before the court. Restatement § 19, Comment a, at 161.

In Brownback this is how Justice Thomas handled the quotations:

Under that doctrine as it existed in 1946, a judgment is "on the merits" if the underlying decision "actually passes directly on the substance of a particular claim before the court." Id., at 501-502, 121 S. Ct. 1021 (cleaned up).

Brownback, 141 S. Ct. at 748.

If Justice Thomas had followed the Bluebook and Gregg's Reference Manual, the citation would have been as follows:

Under that doctrine as it existed in 1946, a judgment is " "on the merits' " if the underlying decision "actually "pass[es] directly on the substance of [a particular claim]' before the court." Id. at 501-02 (alterations in original) (citing Restatement § 19, Comment a, at 161).

For me, making those changes is just fun and makes the passage more accurate in that the actual alterations are shown. Also, knowing that the Restatement was the source for the original quotation may help the reader. Otherwise, Justice Thomas's method was fine and gets rid of the brackets. Moreover...