“Reasonably Reasonable” and Other Head-Spinners
by Ken Bresler
Massachusetts Lawyers Weekly, Rhode Island Lawyers Weekly,
Virginia Lawyers Weekly, May 9, 2016
“Tall-building lawyer.” The term didn’t get a lot of attention when the late Justice Antonin Scalia used it in 2015. It’s a great phrase but it was easy to overlook in his dissent to the same-sex marriage case. After all, readers were trying to absorb the substance of the history-changing case and Scalia’s use of “judicial Putsch,” “mummeries” (pretentious or hypocritical shows or ceremonies), “silly extravagances,” “showy profundities,” and “the mystical aphorisms of the fortune cookie.” And the phrase appeared in a footnote. Obergefell v. Hodges, 135 S. Ct. 2584, 2629 n.18 (2015) (Scalia, dissenting).
So while Justice Anthony Kennedy was writing for the majority, “Marriage remains a building block of our national community, id. at 2601, Justice Scalia used “building” in a different context: discussing the “predominant attitude of tall-building lawyers” to same-sex marriage. The phrase is another way of saying “high-powered lawyers.” It’s similar to “big-firm lawyers,” but not a synonym, because a lawyer in a legal boutique could be a tall-building lawyer. It evokes imagery of people (and buildings) more than “Big Law,” which refers to an industry more than its practitioners. And it’s similar to but more specific than “suits,” which reduces people to the clothes they wear.
Scalia didn’t invent the phrase. It appeared in print as early as 2007 in The Wall Street Journal, although that wasn’t its first use either. But Scalia’s use has been the most prominent – and its first appearance in a reported decision.
So is there an opposite of “tall-building lawyers”? Not exactly. “Short-building lawyers” doesn’t quite do it. Neither does “low-powered lawyers.” Paul Summers, a former Tennessee Attorney General and appellate judge, has said that Tennessee has two types of lawyers: tall-building lawyers and courthouse-square lawyers. The first work in skyscrapers. The second work in offices across the street from the courthouse.
But courthouse squares are design features in the South and Midwest. What’s the opposite of a tall-building lawyer in regions – or towns – without courthouse squares? On her website, Natalie Lile described herself as “an HTL (hometown lawyer) in her hometown of Frankfort, Kentucky, who used to be a TBL (tall building lawyer) in Washington, DC” and other cities.
What other opposites could there be? Home-office lawyers. Post-office-box lawyers. Starbucks-for-an-office lawyers. Rent-a-suite lawyers. Strip-mall lawyers. Small-town lawyers? Maybe “rank and file lawyers” or “the legal hoi polloi.”
***
Now, let’s turn from “tall building lawyer” to another legal phrase featuring a structure: “three-quarters house.” My on-line dictionary defines it as: “A living facility, often unregulated, for recovering alcoholics and addicts and/or people released from incarceration as they transition to more independent living. It has fewer restrictions, such as a shorter curfew, than a halfway house, although the distinction between the two types of facilities is imprecise.” The term appears in legal and non-legal sources as “three-quarters house” or “home,” or “three-quarter-way house” or “home,” with variations in hyphenation.
When one considers that “quarters” is a synonym for “home,” as in “living quarters,” this could really get confusing. A room in such a facility is “a three-quarters quarters.” When one further considers that “quarter” is a synonym for “district,” a concentration of three-quarter houses could be the Three-Quarters Quarter.
***
Back to Justice Scalia. In his last dissent before dying during the night of February 12/13, 2016, Justice Scalia accused the majority of “sleight of hand.” He wrote that “as we know, the Court can decree anything. (Emphasis in the original.) He sarcastically began paragraphs with “How wonderful” and “But have no fear.” He interjected, “What silliness.” In Montgomery v. Louisiana, 136 S.Ct. 718 (Jan. 25, 2016), a case about lifetime sentences without parole for juveniles, Justice Scalia ended his dissent this way:
“[T]hen, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante, at 21. Mission accomplished.”
Scalia was Scaliaesque to the end. Not surprisingly.
***
Courts have used the phrases “eminently reasonable,” “slightly reasonable,” “somewhat reasonable,” and “not far from reasonable.” (In order, e.g., United States v. Simpson, 436 F. App’x 81, 82 (3d Cir. 2011); Lutes v. Kawasaki Motors Corp., No. 3:10CV1549 WWE, 2014 WL 5420205, at *3 (D. Conn. Oct. 22, 2014); e.g., Jones v. State, 200 Ga. App. 519, 522 (1991); and Schamberg v. Auxier, 101 Ky. 292, 40 S.W. 911, 912 (1897).)
Now we have “reasonably reasonable,” or at least a new example of it. It’s in Justice Sonia Sotomayor’s dissent in Mullenix v. Luna, a 2015 decision about a Texas state trooper’s qualified immunity from suit for shooting a motorist. She objected that the majority opinion “calls it reasonable – or even reasonably reasonable – to use deadly force for no discernible gain and over a supervisor’s express order to ‘stand by.’” Mullenix, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting).
Justice Sotomayor is not the first judge to use the phrase, but she is the first Supreme Court Justice to use it, and she seems to be the first judge to use it with an apparent recognition of the irony or wordplay that it entails.
In another police immunity case, a U.S. District Court used the term unself-consciously. The court found that it is “improper to call upon a jury to determine if the officers[’] conduct was ‘reasonably reasonable,’ ‘reasonably unreasonable,’ or ‘unreasonably unreasonable.’ These distinctions are to be drawn by the court upon a finding of relevant facts by the jury.” Morales v. City of Delano, No. 1:10-CV-1203 AWI JLT, 2012 WL 996503, at *9 (E.D. Cal. Mar. 23, 2012).
Now that my head has stopped spinning, and I’ve had a good night’s sleep, I take “reasonably unreasonable” to mean “somewhat unreasonable” and “unreasonably unreasonable” to mean “very unreasonable.” That leaves “reasonably reasonable” to mean “somewhat reasonable.” Sound reasonable?