Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg achieved national folk-hero status for their writing styles. Most palpably so when in dissent, the Justices’ opinions unleashed acerbic wit in support of their respective principles. Their stylistic idiosyncrasies earned the Justices pop culture cachet and, I can attest, the eternal gratitude of 1Ls attempting to slog through yet another Constitutional Law opinion.
But there’s an emerging star. And although her opinions have not yet launched her to comparable mainstream fame, there’s no doubt they will in time. Within the decade since she has been on the Court, Justice Elena Kagan has reshaped not just the style of the Court’s opinions, but, more importantly, the substance.
Much attention (and praise) has been given to Justice Kagan’s writing. Her so-called “conversational style” has won plaudits throughout the legal sphere, from the academy, to practitioners, to legal writing experts. And legal writing community on Twitter—yes, it exists—has been quick to name her as the best writer on the Court.
Take almost any opinion she’s worked on and her considerable talents are obvious. For example, in Lockhart v. United States, Justice Kagan’s dissent begins with a call to the reader to “[i]magine” a scenario suffused with pop culture references:
Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.
It’s a conversational tone that Herman Melville could have admired (call him jealous). And it uses a Star Wars reference to grab a reader’s attention. The genius, of course, is that these tools are not just stylistic means of making a judicial opinion readable (though they do that too), but that they are all in service of Justice Kagan’s end goal: to explain why the statute should be read a certain way.
With the passing of Justices Scalia and Ginsburg, however, Justice Kagan’s writing takes on increased importance. Not only because she is their most apparent stylistic heir, but also because the Court’s changing roster offers her the opportunity to imprint her conversational method not just on the style of the Court’s opinions, but on its substance too.
Just this past week Justice Kagan authored the majority opinion in the consolidated cases Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer. No surprise, she brought her characteristically readable prose to bear on the personal jurisdiction issue; she cheekily describes Ford Motor Company’s connections with the forum states as “a veritable truckload of contracts[.]”
But Justice Kagan also brought her conversational approach to the law itself. Justice Kagan viewed the case as an opportunity to clarify the Court’s personal jurisdiction precedent (a thicket, as any 1L can tell you). Noting that the Court had long permitted jurisdiction where “the suit ‘arise[s] out of or relate[s] to the defendant’s contacts with the forum[,]’” Justice Kagan focused on the conjunctive “or” to make plain that “[t]he first half of that standard asks about causation” whereas “the back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.” In other words, she read the Court’s jurisprudence with an eye to, as she says in Lockhart, an “ordinary understanding of how English works[.]”
That “ordinary understanding” is what we might call judicial conversationalism: a judicial approach that values commonly accepted meanings and everyday usage to derive intent. A more relaxed textualism, this method eschews the need for dictionaries (or even law degrees) to understand what a statute or precedent means. Start looking for it and you can find it everywhere in Justice Kagan’s writing. The difference between Lockhart and Ford Motor Co.—and it’s a big difference—is that her conversational method is now the majority’s reasoning.
It would be making much ado about too little to say that this portends an enormous shift in the Court’s judicial approach. But it would also be a mistake to discount Justice Kagan’s judicial approach and its impact on the Court. Keep an eye out for Justice Kagan’s increased prominence on the Court. And maybe while doing so you can pick up some of her lauded writing tips too.
