Appellate Advocacy Blog

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

Wednesday, August 17, 2022

Writing like Justice Kavanaugh

This week, I'll note some elements of Justice Kavanaugh's style from a 2019 case, Flowers v. Mississippi

1., 2. Syllogistic opening and bottom line up front. As discussed in prior posts, this is (almost) a universal in good legal writing--a little law, a few choice facts, and a conclusion either express or implied that flows from the two.  Justice Kavanaugh is also inclined to give spoilers at the start (which we practitioners love). 

A little law: “In Batson v. Kentucky . . . this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.”

Some facts: “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials. In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to "numerous instances of prosecutorial misconduct." . . . In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial. In the third trial, Flowers was convicted, but the Mississippi Supreme Court yet again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process. . . . The fourth and fifth trials of Flowers ended in mistrials due to hung juries. In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors. 

Conclusion: "[A]ll of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not "'motivated in substantial part by discriminatory intent.'" 

3. Lists galore. Justice Kavanaugh loves to use lists to organize his writing and distill his reasoning. I found five in this opinion alone: 

"Four critical facts, taken together, require reversal. First , in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. . . . Second , in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third , at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth , the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State."

"Jury selection in criminal cases varies significantly based on state and local rules and practices, but ordinarily consists of three phases, which we describe here in general terms. First, a group of citizens in the community is randomly summoned to the courthouse on a particular day for potential jury service. Second, a subgroup of those prospective jurors is called into a particular courtroom for a specific case. The prospective jurors are often questioned by the judge, as well as by the prosecutor and defense attorney. During that second phase, the judge may excuse certain prospective jurors based on their answers. Third, the prosecutor and defense attorney may challenge certain prospective jurors."

"Four parts of Batson warrant particular emphasis here. First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. . . . Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant. . . . Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination. . . . Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out."

"Of particular relevance here, Batson’s holding raised several important evidentiary and procedural issues, three of which we underscore. First, what factors does the trial judge consider in evaluating whether racial discrimination occurred? . . . Second, who enforces Batson?  . . . Third, what is the role of appellate review?"

"Four categories of evidence loom large in assessing the 1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial. We address each in turn."

4. Break up those long sentences. Varying sentence length can help speed the reader along or slow her down, depending on what you're trying to emphasize. But as a general rule, prefer short--words, sentences, paragraphs, briefs, opinions--to long. Justice Kavanaugh seems to enjoy breaking up sentences that most lawyers would put together. For example,

"We cannot just look away. Nor can we focus on the Wright strike in isolation." Many judges would probably write something like "We cannot ignore an overall pattern by focusing on a single juror strike in isolation." Breaking it up makes it the statements have greater urgency, which helps persuade the reader of the need for the result here.

"In this case, Carolyn Wright was a black prospective juror who said she was strongly in favor of the death penalty as a general matter. And she had a family member who was a prison security guard." Again, most would likely put these details about a single juror in a single sentence. But again, breaking it up emphasizes each fact put forward. Very effective.

5. Put the dots close enough so that the reader will connect them before you do. I won't cut an paste the fact section here, but Justice Kavanaugh does a very effective job of showing the reader the facts in a way that helps the reader come to reach the conclusion he wants--small town, deep South, closely divided along racial lines, mostly white victims, black defendant, white prosecutor, etc. In memoranda and briefs, the fact section shouldn't contain argument. Like opening statement, it should just lay out the facts. To use a homely metaphor, it should lay out the dots that you later connect in argument. But if you lay out the dots skillfully enough, the reader will connect the dots for herself before you do it explicitly. Having the reader reach the conclusion on her own is so much more effective than just telling her what to think. 

6. Nice turns of phrase. Justice Kavanaugh likes a bit of style with his substance, as shown by a few good turns of phrase:

"And to understand how equal protection law applies to peremptory challenges, it helps to begin at the beginning."

"In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many."

"One can slice and dice the statistics and come up with all sorts of ways to compare the State’s questioning of excluded black jurors with the State’s questioning of the accepted white jurors."

"In the decades since Batson, this Court’s cases have vigorously enforced and reinforced the decision, and guarded against any backsliding." "We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case."

7. Change up syntax. As the Chief Justice is wont to do, Justice Kavanaugh also likes to change up syntax from time to time, putting the subject later in the sentence for emphasis: "Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.'" Subtext: the Civil War itself was fought to put an end to discrimination like this. 

8. Don't bury good stuff in parentheticals. "A primary objective of the Equal Protection Clause, this Court stated just five years after ratification, was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Many attorneys or judges would have put that part in a parenthetical after the case cite. If it's persuasive, you want it in the body. 

9. If you're going to have a long string cite, make it simple. "In the decades after after Strauder, the Court reiterated that States may not discriminate on the basis of race in jury selection. See, e.g., Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Norris v. Alabama, 294 U.S. 587, 597–599, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hale v. Kentucky, 303 U.S. 613, 616, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (per curiam); Pierre v. Louisiana, 306 U.S. 354, 362, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 130–131, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Hernandez v. Texas, 347 U.S. 475, 477–478, 482, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Coleman v. Alabama, 377 U.S. 129, 133, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964)."

Most readers are not going to examine these cites in detail, so no need to get bogged down in a bunch of parentheticals. 

10. Focus on topic sentences. There are two many to reproduce here, but do yourself a favor and go through the opinion by reading only the first sentence of each paragraph. You will get the entire reasoning of the opinion, and they will read smoothly, as if they were not separated by a bunch of other text. This is a mark of a great writer, because it takes a lot of time and skill to make things that simple and connected. 

11. Short sentence starters. Like many of his colleagues--and perhaps to an even greater degree--Justice Kavanaugh likes short words to start his sentences. The first forty sentences, for example: In; In; He; In; In; The; Flowers; In; The; The; The; In; The; In; We; Four; First; Second; Third; Fourth; We; All; In; We; The; Winona; The; The; In; Three; In; Since; In; In; The; At; The; The; The; etc. Of the first 40, only three had more than one syllable. Wow. The pattern continues throughout the opinion.  

12. Tell 'em what you told 'em. "In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial. In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors. And it engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright. To reiterate, we need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case."

After going through a detailed argument, a good conclusion will encapsulate your argument and help reinforce it without being needlessly or gratingly repetitive. Justice Kavanaugh does that effectively here. 



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