"(Cleaned Up)" Parenthetical Arrives in the Supreme Court

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It's in Justice Thomas's unanimous opinion in Brownback v. King, decided two weeks ago. It has already become popular in lower courts (114 citations just in the last 11 days, from Mar. 1 to Mar. 11), even though it was apparently proposed only in 2017 by appellate lawyer Jack Metzler (@SCOTUSPlaces); that's lightning-fast by legal standards.

Here's my post about the parenthetical from 2018, which explains what it's all about:

[* * *]

A recent Eighth Circuit decision contains this passage:

The first Gingles precondition requires that "the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district." LULAC, 548 U.S. at 425, 126 S.Ct. 2594 (cleaned up).

Here is what the original passage from the cited decision says:

The Court has identified three threshold conditions for establishing a § 2 violation: (1) the racial group is " ' "sufficiently large and geographically compact to constitute a majority in a single-member district" ' "; (2) the racial group is " ' "politically cohesive" ' "; and (3) the majority " ' "vot[es] sufficiently as a bloc to enable it … usually to defeat the minority's preferred candidate." ' " Johnson v. De Grandy, 512 U.S. 997, 1006–1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (quoting Growe, 507 U.S., at 40, 113 S.Ct. 1075 (in turn quoting Thornburg v. Gingles, 478 U.S. 30, 50–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986))). These are the so-called Gingles requirements.

Normally, without the "(cleaned up)," the Eighth Circuit decision would have quoted this as either:

The first Gingles precondition requires that "the racial group is "'"sufficiently large and geographically compact to constitute a majority in a single-member district."'"" LULAC, 548 U.S. at 425, 126 S.Ct. 2594 (quoting Johnson v. De Grandy, 512 U.S. 997, 1006–1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (quoting Growe, 507 U.S., at 40, 113 S.Ct. 1075 (in turn quoting Thornburg v. Gingles, 478 U.S. 30, 50–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986))))

or, better, as:

The first Gingles precondition requires that "the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district." LULAC, 548 U.S. at 425, 126 S.Ct. 2594 (internal quotation marks and citation omitted).

But "cleaned up" basically means "internal quotation marks, brackets, ellipses, and citations omitted"—the original LULAC passage might thus have been written as:

The Court has identified three threshold conditions for establishing a § 2 violation: (1) the racial group is "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the racial group is "politically cohesive"; and (3) the majority "votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate." Johnson v. De Grandy, 512 U.S. 997, 1006–1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (cleaned up) (indirectly quoting Thornburg v. Gingles, 478 U.S. 30, 50–51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)). These are the so-called Gingles requirements.

(The "indirectly quoting" parenthetical is included just to make clear to the reader why they are the so-called Gingles requirements; if this didn't have to be explained in context, the "indirectly quoting" could be dropped.)

I like "cleaned up," because it helps focus readers on the important thing—the substance of the quoted text—without distracting them with the unimportant. But, more importantly, many courts seem to like it…. A Utah Court of Appeals opinion, for instance, explains it thus:

The parenthetical "cleaned up," while perhaps unfamiliar, is being used with increasing frequency to indicate that internal quotation marks, alterations, and/or citations have been omitted from a quotation. For an example of its use in a published opinion, see United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017).

And many cases use it without explaining, which is a sign of its acceptance. I'll use it from now on when filing briefs in courts that regularly use it, and will likely use it even in courts that don't regularly use it, though there I'll add a footnote explaining it and citing authoritative courts that have used it (as in the Utah opinion I just quoted). I'll also use it in law review articles, and if law review editors complain, I'll cite the D.C. Circuit at them.

To be sure, there is a risk that "cleaned up" may be used to sweep some complexities under the rug, and may sometimes be used outright dishonestly. But that's a possibility for any alteration, especially brackets and ellipses (and for that matter the decision when to start and end quoted text). Authors know that the reader may well check the original source, and will spot such misuses; that should be deterrent enough to such a misuse.

NEXT: Today in Supreme Court History: March 12, 1889

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  1. Suggested years ago by a certain law review member, vetoed by the editor-in-chief because “cleaned up” was too colloquial. (She would do things like change “a lack of” to “a dearth of”, “funny” to “delightful” and “like” to “not unlike”.)

    1. So let’s act like lawyers have in the last 1000 years of Anglo-American jurisprudence, and make up a Latin phrase that only we understand and thus confound the laypeople.

      How about in forma purganda? Which means, literally, “in cleaned up form.”

      This way we can pretend we are following some ancient Roman legal doctrine first cited by Cicero, and bill our clients extra for the effort.

    2. I still can’t convince other lawyers to use it in briefs. They are all afraid of the informality.

      1. So long as there are stupid/insecure judges, this fear will continue.

  2. I’ve seen in Second Circuit opinions a single early footnote explaining that the quotation footnoted, as well as any later quotations, would be “cleaned up” as necessary without separate parentheticals or footnotes each time. They did use somewhat more formal language than “cleaned up” though.

  3. How will you quote passages that were already cleaned up (with or without the parenthetical notice) before they got to you?

  4. Or just paraphrase with cite, to same result that readers can argue about accuracy of paraphrase.

    1. Yes. A quote should be a quote – not an approximation of a quote.

  5. Why not be transparent in the argument and begin with the very first case that is cited, and what that case said. Then, move forward chronologically showing how the statement in that case was used in each subsequent case, up to the most recent. This has the benefit of showing the reader whether subsequent justices have, at point on the chain of citations, distorted or altered the original statement.

    The brief in the PA elections clause case is a good example of how a later justice can distort the meaning of statement made from an earlier case. And how lawyers can seize on this distortion to advance their argument.

    In other words, spend more time doing the actual research and reading.

  6. My own instinct would have been to use the phrase (Improved) instead of (Cleaned Up). [joke] Actually, I would have thought that something like (Clarified) would have sounded a bit more professional.

    CU does seem quite informal–to my eyes, anyway–so I’m pleased that it still is managing to gain traction. A tiny bit of immortality for the good Mr. Metzler.

  7. I’m ok with it primarily because it is a weapon in the continuing battle to remain within page limits. Anyone who has had to cut an initial 30 page draft to 15 or even 10 pages knows the problem. Slimming the brief down is often harder work than researching and writing it the first place. I’ve had briefs where adding a single space would push them over the limit. (Hence only one space after periods–two is a profligate waste of available space.)
    The battle to place citations in footnotes was lost long ago, and so they continue to use up valuable real estate in trial court briefs. (The more generous limits in appellate briefs are less of problem). Of course, most courts don’t require parallel citations, so the only reason to use them is if you have little to say. Using “cleaned up” is just one more way to make briefs more brief. I find the earlier citation styles more aesthetically pleasing and informative, but not using it in jurisdictions that accept or welcome the practice is unilateral disarmament.

  8. I’m not sure what the advantage of “(cleaned up)” over “(internal quotation marks and citation omitted)” is suppose to be. Sure, it’s a few words shorter, but at the price of being unclear about what was done with the quotation. As a reader I’d prefer the latter.

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