by

Diagramming Gorsuch

Judge-Neil-Gorsuch-of-the-U.S.-Court-of-Appeals-for-the-Tenth-Circuit-in-DenverI don’t know why the Supreme Court Justice nominee Neil Gorsuch diagrammed part of a sentence in one of his legal opinions. Following the Reed-Kellogg norms that Mark Liberman of Language Log once described as “intellectually obsolete for a hundred years,” Gorsuch diagrammed his selection sloppily. It’s unclear how the diagram really informed his opinion. But more to the point, those merry few who have followed this revelation of Judge Gorsuch’s affinity for diagramming seem to be judging his fitness for the Supreme Court accordingly.

Let’s begin with the sentence, the question before Judge Gorsuch, and the diagram. The judge was rendering an opinion on a freak occurrence during a crime, when a fellow named Rentz fired one bullet that went on from injuring one individual to killing another. The question at hand was whether Rentz could properly be charged, not only with having committed two violent felonies (assault with a deadly weapon and homicide), but also with two violations of a certain statute. The state wanted to find Rentz guilty twice; Judge Gorsuch deemed only one violation to have taken place, and ruled that any other decision produced a situation of double jeopardy. The statute in question reads: “any person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime … be sentenced to a term of imprisonment of not less than 5 years.”

Here’s Gorsuch’s diagram:

Gorsuch diagram

 Here’s the correct diagram: Lucy diagram

The difference isn’t terribly meaningful, though the correct diagram does illustrate the key conjunctions that matter to the charge. That is, the punishment is only for using the firearm both during the crime and in relation to it; if I shoot a clay pigeon while I’m robbing a bank, this particular statute doesn’t apply, nor does it apply to my knocking off one of my co-conspirators with a firearm the night before as we were discussing his dalliance with my wife. At the same time, the charge is relevant whether it’s a crime of violence or one of drug trafficking, take your pick; it doesn’t have to be both.

Judge Gorsuch’s point, though, was different. He was arguing, as he put it, simply that “Just as you can’t throw more touchdowns during the fourth quarter than the total number of times you have thrown a touchdown, you cannot use a firearm during and in relation to crimes of violence more than the total number of times you have used a firearm.” He could have made this point merely by observing that the adjectival clause “who uses a firearm” was restricted by its adverbial modifiers. The parlor trick was fun but unnecessary, and while Judge Gorsuch’s opinion may have earned its distinction for “Exemplary Legal Writing,” it didn’t do so by virtue of Reed-Kellogg.

And yet, the response to this juicy tidbit (to be honest, there’s not much “juicy” about Judge Gorsuch otherwise) says much about what we value and disdain in court nominees. NPR cited the diagramming as evidence that Gorsuch “has an affinity for the English language.” Charles Pierce, writing in Esquire, opined that “All of my diagrams looked like plans for the Erie Lackawanna railroad. I’d filibuster this guy just because he’s able to do it.” And Twitterers responded to lawyer Bryan Gividen’s tweet of the diagramming anecdote with comments like “My 8th grade english teacher just raised up out of the grave and said i told you diagramming was important!’,” “I’d love to see him do this in the next 2nd Amendment case (Lesson 1: Dependent and Independent Clauses),” “Priceless and who among the Dems on the Senate Judiciary Committee could do that,” “I am so jazzed from seeing this that I should perhaps be worried,” “After seeing this, I support him, even though I’m pretty uninformed otherwise,” and “He reminds me of my 5th grade teacher who flunked me. No way.”

I would very much prefer that we judged Supreme Court nominees on their judicial temperament and their record of wise, nonpartisan decision making. But if we must regard Reed-Kellogg sentence diagramming as the bright, clever little bauble that will make or break Judge Gorsuch’s reputation, at least among certain factions, let me go on the record with this: It was a sloppy diagram that he didn’t need to prove his point. Now tell me, children, what does your inner Miss Gradgrind say to that?

 

 

 

Return to Top