Day Six
Friday, July 26, 1996
I look back with nostalgia on the days when I had writer’s block. Faced with a memorandum or term paper, I’d brood for hours–sometimes days–as the deadline approached. Finally, I would approach my typewriter the way one greets an enemy, and begin pecking out a tentative first sentence. Unhappy with the flawed effort, I’d noisily remove the offending sheet of paper, crumple it into a ball, and toss it in the trash like so much hazardous waste. So too with the next dozen attempts. Eventually, with the deadline closing in, the need to write something would become pressing, so I’d rescue some discarded scrap from the basket and push on.
Much of my professional life now consists of writing–court opinions and orders, memoranda to colleagues, letters, e-mail, articles, book reviews. There is so much to do that I can no longer afford the luxury of writer’s block. Time is so tightly budgeted that the subtle pleasure of procrastination is no longer available to me.
Nor has writing gotten much easier over the years. I’ve always found it painful–sort of like extracting something from deep inside and putting it on paper. But I know I must do it, and I also know that when I’m done I will likely delight in it. But the words seldom flow easily and of their own force–usually more a cricket pump than a gusher. In fact, I revise habitually, sometimes going through 50 drafts or more, but wait until I have a complete first draft before allowing myself the pleasure of revising, reorganizing, cutting.
Today’s tough drafting job is a dissent. Two of my colleagues have signed on to an opinion that, in my view, is just plain wrong. They’ve misstated the facts and distorted the authorities. In a dozen or more ways, their view of the case differs from mine. How best to explain these differences so maybe, just maybe, one of them will change his mind? Or if not, perhaps another judge at another time will find my view persuasive. A dispute about a legal principle is never conclusively resolved in a single case; it can take years or decades, and dissenters are sometimes vindicated. Justice Harlan’s dissent in Plessy vs. Ferguson, resoundingly rejected in 1896, became the law 58 years later in Brown vs. Board of Education. This is the exemplar we all secretly strive to emulate.
But first I must get past that first sentence. Let’s see:
“My colleagues miss the boat because they’re on a wild goose chase after having swallowed a red herring.”
Hmm, a bit much. How about something more conciliatory: “Well-intentioned jurists can have honest differences of opinion in difficult cases.”
Nah, too namby-pamby. I really want to say that my colleagues are out to lunch, but in a way that won’t tick them off. How about: “Were we writing on a clean slate, this would be a difficult case. But we’re not. Our cases, and those of the Supreme Court, blaze a clear path; my colleagues have strayed from it. I cannot join them in their misguided journey.”
What I’m really thinking is, “Why couldn’t THEY have writer’s block?”
