Justices Scalia and Kagan have joined forces on deer-hunting trips. Do they share the same gift for writing as well?
In only a few years’ time, Kagan’s engaging yet biting opinions and dissents have astonished a once-skeptical Left — and have catapulted her to the top of the liberal bloc, if not the entire Court.
I offer three reasons below.
Kagan has emerged as one of the bench’s clearest writers of opening paragraphs. Take her first paragraph in Florida v. Harris, writing for a unanimous Court:
“In this case, we consider how a court should determine if the ‘alert’ of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability. See 71 So. 3d 756, 775 (2011). We think that demand inconsistent with the ‘flexible, common-sense standard’ of probable cause. Illinois v. Gates, 462 U. S. 213, 239 (1983)” (Florida v. Harris).
This quick three-sentence opener gives lawyers, lower-court judges, and the public just what they need. And yet she also spins the state supreme court holding so it sounds unreasonable on its face, giving the opening paragraph the force of syllogism.
In that regard, she crafts openings to opinions the way the very best appellate lawyers craft their statements of the issues.
Even more incisive are the bird’s-eye-view openings to her dissents. Consider the start of her recent dissent in American Express v. Italian Colors, and watch how it chugs along toward her Scalia-esque — and already widely quoted — “Too darn bad”:
“Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability — even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad” (American Express v. Italian Colors).
Her economy and precision don’t end with introductions, either. She also shares her hunting partner’s gift for explaining dusty legal issues concisely, convincingly, and vividly. Take her opinion for a unanimous Court in Kloeckner v. Solis, a dry case about whether an agency action should be appealed to the district court or to the court of appeals. In construing two statutory provisions, she addresses you, the reader, directly, making sure you understand how the provisions intersect and ultimately support the Court’s interpretation while eviscerating the government’s:
“Begin with §7703, which governs judicial review of the MSPB’s rulings . . . .
Turn next to §7702, which identifies the cases “subject to [its] provisions.” As also stated earlier, . . . .
Now just put §7703 and §7702 together — say, in the form of a syllogism, to make the point obvious. Under §7703(b)(2), “cases of discrimination subject to [§7702]” shall be filed in district court. Under §7702(a)(1), the “cases of discrimination subject to [§7702]” are mixed cases — those appealable to the MSPB and alleging discrimination. Ergo, mixed cases shall be filed in district court.
And so that is where Kloeckner’s case should have been filed (as indeed it was).” (Kloeckner v. Solis)
Peerless use of examples.
Kagan is not the only clear writer on the Court. But no other modern justice conjures up provocative examples as effectively as Kagan does in her dissents.
Consider the beginning of her dissent in Arizona Free Enterprise Club v. Bennett, a case in which the Court struck down a matching-funds scheme on First Amendment grounds:
“Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. . . .
Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. . . . [But] candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. . . .
Voters of the second State . . . realize, based on the first State’s experience, that such a program will not work unless candidates agree to participate in it. And candidates will participate only if they know that they will receive sufficient funding to run competitive races. So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. . . . And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.” (Arizona Free Enterprise Club v. Bennett).
Even more compelling was her dissent in the Establishment Clause case Arizona Christian School Tuition Organization v. Winn, a dissent that the Green Bag singled out as the concurrence or dissent of the year. Perhaps trying to expand her base, she conjures up an example likely to resonate with the Right:
“Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.” (Arizona Christian School Tuition Organization v. Winn)
More recently, Kagan has integrated these examples and analogies into opinions and concurrences as well. Her concurrence in Florida v. Jardines is a prime example. Note how she simulates dialogue with the reader through question and answer, as she does in the dissent above:
“For me, a simple analogy clinches this case — and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high-powered binoculars. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your ‘visitor’ trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your ‘reasonable expectation of privacy,’ by nosing into intimacies you sensibly thought protected from disclosure? Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). Yes, of course, he has done that too” (Florida v. Jardines).
A personal, pragmatic touch.
The Right and the Left both accuse The High Court of being elitist and out of touch. At least on the writing front, Kagan is anything but.
Although her woman-on-the-street vernacular can sometimes be too much of a good thing, her style is a refreshing antidote to the stilted and haughty tone that keeps so many other justices from connecting with their intended audience.
Part of this effect comes from simple word choice. Kagan, like Scalia, inhabits the warm and witty side of the style spectrum:
“Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury” (Arizona Free Enterprise Club v. Bennett).
“So [Petitioners] are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah” (Arizona Free Enterprise Club v. Bennett).
“If you need to take a deep breath after all that, you’re not alone. It would be hard to dream up a more round-about way of bifurcating judicial review of the [agency’s] rulings in mixed cases.” (Kloeckner v. Solis)
And yet part of her appeal is pragmatic: Pivoting from logic to experience, she zeroes on what she sees as the harmful practical effects of the Court’s rulings:
Take, for example, her dissent in Arizona Christian School Tuition Organization v. Winn:
“[T]he Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Today’s opinion thus enables the government to end-run Flast ’s guarantee of access to the Judiciary. From now on, the government need follow just one simple rule — subsidize through the tax system — to preclude taxpayer challenges to state funding of religion.” (Arizona Christian School Tuition Organization v. Winn)
Tomorrow I will turn to brief-writing, particularly in the trial courts. Until then, I welcome reflections on the Kagan passages above.