Appellate Advocacy Blog

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

Wednesday, June 22, 2022

Writing like Justice Kagan, part III

Continuing the series on Justice Kagan's writing style--a third and final installment on her opinion in Gundy v. United States. The first and second installments are here and here

13. Teach your audience. "Recall again the provision at issue.  Congress gave the Attorney General authority to 'specify the applicability' of SORNA's requirements." "Note the tense 'was,' not 'is.' This Court has often looked for Congress' choice of verb tense to ascertain a statute's temporal reach, including when interpreting other SORNA provisions. . . . . Here, Congress' use of the past tense to define the term 'sex offender' shows that SORNA was not merely forward-looking." "Now that we have determined what [the statute] means, we can consider whether it violates the Constitution."

Reading Justice Kagan's opinions often feels like a guided tour of the law. She points out and reminds and makes plain the most important parts, as if she's still the law professor and we are all still students. But it's not condescending at all--it feels natural. This same tone might not work for an advocate, but we can all learn how to highlight what we want our audience (judges/justices) to focus on and lead them through our arguments smoothly.

14. A little self-deprecation never hurts. "(Once again, the Reynolds majority noted this history, but Justice Scalia's dissent thought that was gilding the lily. . . . He had a point, but we can't resist)."

What an artful way of acknowledging an opposition position while going against it. Some self-deprecation and acknowledgement of the reasonableness of your opponent's position is disarming and makes the reader more receptive to what you have to say.

15. Parentheticals for emphasis. "Gundy makes his stand there (and there only), insisting that the lonesome phrase 'specify the applicability' ends the issue." Within a year of SORNA's enactment (217 days, to be precise), the Attorney General determined that SORNA would apply immediately to pre-Act offenders." Only twice in this country's history (and that in a single year)have we found a delegation excessive--in each case because 'Congress has failed to articulate any policy or standard' to confine discretion." 

A well-placed parenthetical within a sentence feels like someone explaining something in a lower voice or as a quick and sometimes humorous aside. It slows down the reader a bit, but with purpose, and does not drag.

16. Repetition for emphasis. "By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the 'public interest.' . . . We have sustained authorization for agencies to set 'fair and equitable' prices and 'just and reasonable' rates. . . . We more recently affirmed a delegation to an agency to issue whatever air quality standards are 'requisite to protect the public health. . . . And so forth." 

Here, Justice Kagan uses the rhetorical device of anaphora--repetition at the beginning of a sentence ("we have, we have, we have). She also uses relief (we have, we have, we have, we more recently . . . and so forth) to pleasantly wrap things up. A less skilled writer would have written something stilted like "This Court has repeatedly approved of various delegations," and then buried the lede in case parentheticals, which the reader is likely to skip. Justice Kagan weaves the cases in to make a point. Point made! (Sorry, Ross Guberman :).

17. A well-placed turn of phrase. "It is wisdom and humility alike that this Court has always upheld such 'necessities of government.'"

There are so many less effective ways to say that it's a good idea to uphold statutory delegations of authority. She hit on a memorable and almost poetic one. 

That wraps up this series. It's amazing how much you can learn by paying attention to what good writers do. Always pay attention to Justice Kagan and you'll learn a lot about persuasion.

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