The Situation: “Horsefeathers!”

The Situation on Tuesday considered the role of the grand jury in modern America.

Today, let’s consider the role of the exclamation mark in a judicial opinion.

U.S. District Senior Judge Richard Leon loves exclamation marks. He uses a lot of them. Back in May, he opened his opinion striking down President Trump’s executive order targeting the law firm of WilmerHale with the statement, “The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this!” The opinion also contained such memorable phrases as, “The causal chain contains at most two links, and it is certainly not highly attenuated!” and “All warrant summary judgment for WilmerHale!” 

Yesterday, Judge Leon struck again, this time in the civil case brought by Sen. Mark Kelly (D-Ariz.) against Secretary of Defense Pete Hegseth. The 29-page order, which enjoins Hegseth from attempting to reduce the senator’s retirement pay for having made a video reminding servicemembers that they don’t have to follow illegal orders, contains no fewer than 14 sentences punctuated with an exclamation mark. Here they all are—some with a little context added, some nakedly unadorned:

• “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”
• “To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”
• “Here, Senator Kelly's First Amendment claim presents a justiciable controversy!”
• “To say the least, those issues are in the wheelhouse of Article III courts, not military officials!”
• “Third, the outcome of the administrative process would, in all likelihood, be a fait accompli!”
• “Second, ‘the hardship to the parties of withholding court consideration’ is severe!”
• “As applied to a sitting Member of Congress, the Parker rule has even less force!”
• “Indeed, if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!”
• “Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that ‘Congress has expressly made applicable to retired servicemembers.’ Horsefeathers!”
• “The First Amendment ‘is a limitation on the power of Congress,’ . . ., not the other way around!”
• “There is no question that such actions would deter ‘a person of ordinary firmness in plaintiff's position.’ . . . Indeed, they already have. Per an amicus brief submitted by forty-one retired officers, many veterans are today ‘declining’ to ‘participate in public debate on important and contested issues’ out of fear of ‘official reprisal.’ That is a troubling development in a free country!”
• “Defendants also argue that Senator Kelly has pied himself out of irreparable injury by asserting that he ‘intends to continue to speak on matters of public concern’ and ‘will not be silenced.’ Please!”
• “Put simply, Defendants' response is anemic!”
• “If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!”

It wasn’t just exclamation marks. Judge Leon also went heavy, from the first sentence on, on the use of italics. The opinion opens: “United States Senator Mark Kelly, a retired naval officer, has been censured by Secretary of Defense Pete Hegseth for voicing certain opinions on military actions and policy.”

Needless to say, federal judges don’t usually write like this! 

And it’s easy to make fun of!

The punctuation gives Judge Leon’s opinion a hyperventilating vibe that is easy to dismiss as Trump Derangement Syndrome—though Judge Leon is a conservative-leaning judge appointed to the bench by George W. Bush. It is also thoroughly distracting from the normal experience of reading a judicial opinion. When the opinion came down yesterday, the first thing I did was not to read the holding or the introduction but to hit CTRL-F and search for exclamation marks.

I wasn’t the only one. In one of the Lawfare Slack channels, Roger Parloff’s first comment on the opinion was, “Judge Leon uses 14 exclamation marks in his Kelly v. Hegseth ruling, including ‘Horsefeathers!’” To which Quinta Jurecic responded, “hahaha I also immediately hit ctrl+f!" Parloff later wrote, comparing the decision with the WilmerHale opinion, “Note that it's difficult to discern which case outraged Judge Leon more—Senator Kelly's case against Hegseth or WilmerHale's against the Trump exec order. Total EMs was greater in Wilmer Hale (27 compared to 14), yet EM density in Kelly was  greater (.48/per page compared to .37/per page).” 

This is perhaps not the kind of analysis judges should aspire to be provoking!

The emphatic punctuation game also distracts from some actually tricky issues in the case. Don’t be surprised, for example, if the D.C. Circuit Court of Appeals has more to say on ripeness and the procedural posture of the case than a breezy dismissal of the government’s claim that Sen. Kelly has to exhaust his administrative remedies within the Defense Department before going into court.

And yet, for all that I don’t approve of eliding the tough questions by means of foot-stomping and italicizing, color me sympathetic to Judge Leon. The Situation brings out strange forms of expression in a lot of people. I wear dog shirts—daily—and I shine lights on buildings. Some people dress up in inflatable frog costumes.

The discipline of being a federal judge necessarily constrains expression, and it should. And different judges have struggled to explain the scale of the outrages before them within the constraints of the discipline. The most eloquent among them write learned prose poems about the rule of law. Some have compiled gigantic factual records. For Judge Leon, the mode of protest is the relatively straight and spare legal analysis laced with periodic exclamations—or sometimes just exclamation marks on the end of ordinary sentences. It’s a crude way of saying that not only is the scrutinized activity really deviant from the American tradition, it explodes the normal way the law has of talking about such things. Think of it as the judicial equivalent of the Portland frog protesters dancing in front of ICE officers.

Is it unbecoming a federal judge? Yes. Is it an intellectually compelling way for a judge to write? No. Is it adolescent? Yes. 

But it is arresting. It does make one stop and think. And that, I suspect, is the point.

The Situation continues tomorrow.