We’ve talked before about how Justice Kagan is one of the Supreme Court’s most interesting writers. A thoughtful new article by Laura Krugman Ray, Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions, builds upon that topic by exploring some of Justice Kagan’s most effective writing tools. Here are a few that make Justice Kagan’s work so reader-friendly:
Kagan often opens a sentence with a direct invocation to the reader:
- “Consider first what the two statutes tell a slaughterhouse to do”
- “Imagine the converse of the statute described above”
- “Pretend you are financing your campaign through private donations.”
She uses a “generous sprinking” of informal and even colloquial diction:
- “If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system.”
She reaches for familiar similies and metaphors from outside the legal sphere:
- “The difficulty, then, is in finding the Goldilocks solution—not too large, not too small, but just right”
- “That fact is as extraneous to the merits of the case as a coin flip would be.”
- “As against all this, the majority claims to have found three smoking guns that reveal the State’s true (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.”
Her parenthetical commentary “establishes a bond with a listener – a change of tone that suggests shared sensibility”:
- “S. 812 contained numerous items, including a title on importing prescription drugs (no controversy there!), that may have caused its failure.”
- “The only differences are that Cellmark is a private laboratory under contract with the State (which no one thinks relevant), and that the report is not labeled a ‘certificate.’ That amounts to (maybe) a nickel’s worth of difference: The similarities in form, function, and purpose dwarf the distinctions.”