Here are two passages from a recent Supreme Court case called Already LLC v. Nike.
Guess which Justice wrote each.
“This brief, separate concurrence is written to underscore that covenants like the one Nike filed here ought not to be taken as an automatic means for the party who first charged a competitor with trademark infringement suddenly to abandon the suit without incurring the risk of an ensuing adverse adjudication.”
“If such a shoe exists, the parties have not pointed to it, there is no evidence that Already has dreamt of it, and we cannot conceive of it. It sits, as far as we can tell, on a shelf between Dorothy’s ruby slippers and Perseus’s winged sandals.”
The author of the first passage is Justice Kennedy. Although he has said that he aspires to write like Hemingway, his sentence is not exactly The Old Man and the Sea.
The second passage is from the Chief Justice, and it’s a prime example of why Jeffrey Toobin’s new book The Oath describes him as a “brilliant writer — clear, epigrammatic, eloquent without being verbose.”
The Chief Justice was no doubt one of the best advocates of his generation, but is he also the best writer on today’s Court?
The winner of such a contest would hinge in part on how the umpire calls balls and strikes. Applying my own rule book, I will judge these Justices based on three criteria: a knack for the aphorism, a command of the “impure style,” and a laser-like focus on issues. As I explain below, Roberts hits a home run on all three.
First criterion: a knack for the aphorism.
Let me share another pair of passages. The first is from Justice Kennedy: “Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality” (Grutter v. Bollinger, dissenting).
The second is from the Chief Justice: “It is a sordid business, this divvying us up by race” (League of United Latin American Citizens v. Perry).
Now which of these two Justices is more likely to join the pantheon of “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic” (Holmes), “The criminal is to go free because the constable has blundered” (Cardozo), and “We are not final because we are infallible, but we are infallible only because we are final” (Jackson)?
True, Scalia is a genius at one-liners as well, but his — “The Court has mistaken a Kulturkampf for a fit of spite,” “the black-robed supremacy that today’s majority finds so attractive” — mainly populate his dissents. Roberts, by contrast, fuses his own one-liners into opinions with binding effect: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Parents Involved in Community Schools v. Seattle School District No. 1); “That is not the country the Framers of our Constitution envisioned” (NFIB v. Sebelius); and “The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem” (Shelby County v. Holder).
Although the best aphorisms, like pornography, have a bit of “I know it when I see it” in them, remember that the enduring ones always sound more like speech than writing.
Second criterion: a mastery of the “impure style.”
Borrowing from Robert Penn Warren’s formulation about poetry, Judge Posner has proposed splitting judges’ styles into pure — “lofty, formal, imperious, impersonal” — and impure — “direct, forthright,” “informal, frank, even racy.”
Although “purists” dominate the bench today, the style of most of the best writers, including Posner himself, is “impure”: Posner cites Holmes, Jackson, and Learned Hand as prototypes.
Justice Kennedy’s prose approaches a parody of the “pure” style, with his uber-lofty talk like “Liberty finds no refuge in a jurisprudence of doubt” (Planned Parenthood v. Casey).
Roberts has much more fun when he writes, making the reader’s journey enjoyable and even memorable.
Here are five of the Chief Justice’s top tricks:
Word play: “We trust that AT&T won’t take it personally” (FCC v. AT&T, a case about whether “personal privacy” applies to corporations).
Pop culture: “‘When you got nothing, you got nothing to lose,’ Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)” (Sprint Communications v. APCC Services, Inc., dissenting).
Wry humor: “High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so . . . Surely students have not lost that ability by the time they get to law school” (Rumsfeld v. FAIR).
Concrete imagery: “The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided” (Brigham City v. Stuart).
Extended comparisons: “[T]here is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the same — a full stomach and a dead body — it is the means of getting there that attracts notice. I would think it more an affront to someone’s dignity to be sued by a brother than to be sued by a stranger. While neither may be welcomed, that does not mean they would be equally received” (Virginia Office for Protection and Advocacy v. Stewart, dissenting).
Third criterion: a laser-like focus on issues.
I don’t mean to pick on Justice Kennedy’s writing, but just read the opening of his opinion in Bailey v. United States:
“The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. A search may be of a person, a thing, or a place. So too a seizure may be of a person, a thing, or even a place. A search or a seizure may occur singly or in combination, and in differing sequence. In some cases the validity of one determines the validity of the other. The instant case involves the search of a place (an apartment dwelling) and the seizure of a person. But here, though it is acknowledged that the search was lawful, it does not follow that the seizure was lawful as well. The seizure of the person is quite in question.”
Now read the opening of the Chief Justice’s opinion in Blueford v. Arkansas:
“The Double Jeopardy Clause protects against being tried twice for the same offense. The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder.”
Both Justices use about the same number of words. Yet one simply pontificates, while the other integrates a narrative in a way that explains the issue so that even a non-lawyer can understand the stakes.
On these three criteria, then, the Chief Justice is perhaps the Chief Writer as well. That said, tomorrow I’ll make the case that Justice Kagan is every bit Roberts’s equal on the Left. And in the meantime, I welcome any thoughts on whether my three criteria are fair and complete — and fairly applied.