Paul Weiss Writes That Solicitor General Elizabeth Prelogar’s Arguments Are A ‘Hot Mess’

// Far be it from Above the Law to discourage saucy legal writing. The profession can get pretty stuffy and could use a talented writer willing to inject a little fun into the proceedings. Why should judges have all the fun? Or, more often, why should judges try and fail to have all the fun.

But even if an attorney is showing off a lighter side, it’s still imperative that the writing remain professional and respectful. And it definitely needs to avoid careening into sexist tropes a mere four paragraphs in.

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Unfortunately, Paul Weiss partner Kannon Shanmugam failed to cling to these rules.

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Here’s our supplemental brief in Midwest ATC v. Badilla, on the immunity of military contractors, responding to the government’s brief (which was filed nearly a year after the Supreme Court’s invitation):https://t.co/xYIIjh1bH3

— Kannon Shanmugam (@KannonShanmugam) May 2, 2023

This gives all the appearance of a straightforward filing. But then you start reading the filing and…. Well, as Slate’s Mark Joseph Stern asked, “Is this the first appearance of “hot mess” in a Supreme Court brief?”

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We’re going to go ahead and assume it is indeed the first. With any luck, it will also be the last.

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Where to begin?

It’s disrespectful, sure. But it also projects weakness to try and poison the well before engaging directly with the substance of the brief. It’s also inviting the audience to approach the government’s brief with a sympathetic frame — the bar is set and if the original brief is even remotely reasonable, Shanmugam’s brief (and John Freedenberg of Goldberg Segalla is on this thing too) will reek of overreach.

Speaking of the audience… who is this even for? Justice Alito loves some mean-spirited trolling, but somehow I don’t think he’s deep enough in the Project Runway canon to even understand what this reference is about. One suspects the clerks do, however. And they deeply appreciate needlessly mean-spirited hijinks. It’s practically a right of passage.

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But the most egregious aspect of this brief is its trafficking in sexist tropes. Would the brief be a “hot mess” — a term rooted in women’s fashion — if it weren’t written by a female solicitor general? Doubtless some Shanmugam defenders would say “yes,” but that puts a lot of strain on the reference. There’s a lot of work on the gendered roots of “hot mess,” but without getting into the academic side of things, it just sounds wrong as a piece of modern American slang to apply this term in a masculine-coded setting. It’s as cringey as if someone tried to use “cojones” for a feminine-coded one.

Do you have any idea how easy it is to be insulting without being sexist? The brief could be “hot garbage” or a “tire fire” or “smooth trash” or “half-assed” or even “argle bargle.” There are just so many ways to get around this.

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If this happened at oral argument, one could shrug it off as an in-the-moment failure to grasp the context of the phrase. But this is a brief. People edited this… repeatedly. Hours and hours of expensive hours were spent making sure no word appeared out of place. And presumably the lawyers devoted even more time to the decision to insert a slang insult into a Supreme Court brief to denigrate the Solicitor General of the United States. Even if you were inclined to grant some benefit of the doubt to the phrase “hot mess,” there’s not really any excuse to even approach the line of sexist language in a Supreme Court filing.

Unfortunately, this likely isn’t the last time this will come up. Lesser advocates than Shanmugam will feel emboldened to try their own hand at taking the highest profile female advocate in the country down a peg. Next time the government’s brief will be described as “shrill” or its arguments “hysterical.” Now that someone is successfully sneaking gendered insults in there, this is just going to get worse before it gets better.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Biglaw, Elizabeth Prelogar, Goldberg Segalla, Kannon Shanmugam, Paul Weiss