Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, May 26, 2022

Writing like Justice Kagan, part II

Continuing last week's post analyzing Justice Kagan's writing techniques from Gundy v. United States that make her such an effective communicator.

7. Signal attention to prevent skipping: "Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation." "And indeed, once a court interprets the statute, it may find that the constitutional question all but answers itself." She signals to the reader that statutory construction is going to be key here, which draws the readers attention to what is often otherwise just boring explication (this statute requires this and that, etc.).

8. Pair opposites. "begins (and often almost ends)"; "The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides." "And indeed, once a court interprets the statute, it may find that the constitutional question all but answers itself." Begin-end; question-answer. Pairing opposites provides a sense of balance and contrast, and hints that the end and the answers are quick in coming.

9., 10. Short sentence beginners and short sentences to draw attention. "That is the case here, because [the statute] does not give the Attorney General anything like the 'unguided' and 'unchecked' authority that Gundy says. . . . The provision, in Gundy's view, 'grants the Attorney General plenary power to determine [the statute's] applicability to pre-Act offenders . . . . If that were so, we would face a nondelegation question. But it is not. This Court has already interpreted [the statute] to say something different . . . . And revisiting the issue yet more fully today, we reach the same conclusion. The text, considered alongside its context, purpose, and history, makes clear . . . ." "And no Attorney General has used (or apprarently, thought to use) [the statute] in any more expansive way. To the contrary." Many of Justice Kagan's first words in each sentence are single-syllable, which provide a breezy beginning and help speed the reader along. She also uses short sentences--and even sentence fragments--to draw attention to a point before returning to her normal sentence cadence. Crisp!

11. Nutshell your arguments. "The delegation was a stopgap, and nothing more." This is a great line. After going into great detail about what the act requires (and what it does not), she sums up, in plain English, exactly what the delegation does that makes it permissible. In this same vein, at oral argument in Wooden v. United States, counsel remarked that she had summed up the case better than he could in a month's worth of moots preparing for the argument. For those who have listened to her over the years, this ability is often on display at argument, but she does it equally well in her writing. 

12. More colloquialisms. "Gundy dismisses Reynolds's relevance, but his arguments come up short." "The different answers on offer here reflect competing views of statutory interpretation." "So the mismatch between [the statute's] statement of purpose and Gundy's view of [it] is as stark as stark comes." So many attorneys would have just said "fail," "each party offers," and "there is a mismatch." Justice Kagan says those things better and gives the reader little pleasing surprises rather than the same-ol' same ol'.

I have yet more thoughts on this opinion, which I'll continue next time.

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