On Writing A Legal history From “Federal District Level to the Supreme Court”

June 23rd, 2014

The WSJ review of Jo Becker and the David Boies/Ted Olson accounts of the same-sex marriage books offers this critique of the dificulty of writing a book about litigation:

As is perhaps inevitable in legal histories recounting the path of a case from the federal district level to the Supreme Court, the narrative in these two books quickly becomes repetitive. This is all the more so when the subject is same-sex marriage, a topic that has been endlessly debated in the culture and played out in multiple courtrooms over the past two decades, with practically identical arguments marshaled for and against it every time.

I struggled with this problem greatly when writing Unprecedented. The same challenge to Obamacare¬†was filed in many courts across the country, and the arguments presented at the district, and then Circuit level were largely the same (the government’s position evolved slightly).

To minimize the boredom, I deliberately omitted certain aspects of the legal arguments. I would discuss each element when I talked about a new case. That way, by the time you got to the Supreme Court, all of the arguments had been laid out. This made certain accounts of the narrative incomplete, but I took literary license to make it work.

For example, I did’t mention the taxing power till I got to the Fourth Circuit. And I didn’t talk much about the Necessary and Proper clause until I got to the Supreme Court. It wasn’t easy, but it made the narrative more enriching.