Section 12.2 Short, Aggressive Questions
Takeaway point 12.2: Short, aggressive Questions Presented are ideal when your issue is fairly simple because they pack a punch and will not bore readers.
Short Questions need not be meek Questions.
Many lawyers craft short Questions Presented that manage to pack a punch. As noted earlier, one survey found that the average Question Presented contains thirty-seven words, so this section uses examples of approximately that length. Here is an example of how aggressive a lawyer can get in thirty-seven words.
| Example 12.2.a | Whether the Executive’s use of military power inside the United States to detain, without charge or trial, a person who is lawfully in the United States violates the Constitution where Congress has not expressly authorized such detention. |
Reread this Question to count how many little details in this Question hint at the answer. Done? Let’s scrutinize the lawyers’ choices.
Let’s look at another short, aggressive Question.
| Example 12.2.b | Whether a monument bearing the Ten Commandments, which has stood for over forty years and is surrounded by sixteen other monuments on the Texas Capitol Grounds, constitutes an impermissible establishment of religion in violation of the First Amendment. |
Four of this Question’s choices merit your attention. First, the challenged monument is merely “bearing” the Ten Commandments. Thus, the lawyers — deliberately — gloss over whether the monument is exclusively about or only partially about religion. The word “featuring,” by contrast, would have suggested that the Ten Commandments dominated the monument. Second, the monument “has stood for over forty years,” which establishes the monument’s history and assuages the justices’ potential concerns that Texas is actively (and freshly) injecting religion into a public space.
This detail featured prominently in the 5-4 decision that allowed the monument to stand. Third, “sixteen other monuments” surround the Ten Commandments, suggesting that the religious text is incidental to a visitor’s overall experience. The brief does not mention whether any of those other monuments mention religious content. Two others did. But the Question Presented need not, and should not, air bad facts, which can wait until the Statement. And finally, the monument is outside the statehouse (i.e., on the “Grounds”): thus, it is merely part of a predominantly secular walking tour that allows viewers to breeze past or skip the religious content. Had the lawyers written “at the Texas Statehouse” readers might have inferred that the commandments were inside the statehouse, which might be more objectionable to some judges. Pay similar care to the details and words that appear in your Questions Presented.Here’s one final example of how to frame a Question concisely and aggressively. The lawyers sought a writ of certiorari, so they highlighted both the “split” among courts that had considered this issue and the weight of authority favoring their client.
| Example 12.2.c | Whether the Supreme Court of South Carolina erred in holding — in conflict with twenty-two federal courts of appeals and state courts of last resort — that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. |