Several years ago, in a post on this faculty blog, I extolled the writing prowess of Justice Elena Kagan. Regardless of whether you agree with her on the merits of any given case, you have to admit that her writing is clean, forceful, and—above all—readable. It has earned her considerable respect from legal writers across the country. And, as I argued in that post, Justice Kagan’s conversational writing was beginning to shape not just the syntax of the opinions but their substance too.
Consider the 2021 consolidated cases Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer. Justice Kagan wrote for the majority here on personal jurisdiction. Using, as she has said in a previous opinion, an “ordinary understanding of how English works[,]” Justice Kagan used her conversational style to interpret the Court’s complicated personal jurisdiction jurisprudence. 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 so doing, Justice Kagan was using something I call “judicial conversationalism”— a judicial approach that values commonly accepted meanings and everyday usage to derive intent—to interpret precedent. In judicial conversationalism, there is little need for law dictionaries to understand what text means—you just read it and interpret it consistent with how even non-lawyers would understand it.
I heralded this judicial conversationalism in 2021 as a new—and ascendant—mode of judicial interpretation. However, I did not anticipate its adoption by other members of the court.
Enter Justice Amy Coney Barrett. Her writing style, though nascent, appears to aim for the same level of readability as Justice Kagan’s prose. But, more importantly, her method of judicial interpretation also seems to borrow from the Justice Kagan school of judicial conversationalism.
In late June 2023, the Court issued its opinion in Biden v. Nebraska, striking down the Biden Administration’s student loan forgiveness plan. The majority opinion held two things: (1) that the loan forgiveness plan was not authorized by the statute at issue, the HEROES Act; and (2) that the plan ran afoul of the major questions doctrine. In a separate concurrence, and after joining the majority opinion in full, Justice Barrett wrote to explain her view of the major questions doctrine. She defended the doctrine—one that Justice Kagan has mercilessly attacked as a doctrine that “magically appear[s] as [a] get-out-of-text free card[]”—on textualist grounds. But in so doing, Justice Barrett adopted a version of judicial conversationalism. Emphasizing that context is important to judicial interpretation, Justice Barrett envisioned a conversation between a grocer and a clerk:
“[I]magine that a grocer instructs a clerk to ‘go to the orchard and buy apples for the store.’ Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase. A clerk who disregards context and stretches the words to their fullest will not have a job for long.”
Why is this important? Because the outcome is, as Justice Barrett noted, “consistent with how we communicate conversationally.” (Emphasis added). And because of that, the major questions doctrine “grows out of these same commonsense principles of communication.”
In other words, Justice Barrett has taken judicial conversationalism for her own. Why is the major questions doctrine supportable? To Justice Barrett, because it reflects common sense—and conversational—methods of communication.
What is fascinating, however, is that Justice Barrett did not use judicial conversationalism to interpret the HEROES Act, the first part of the majority opinion.
But Justice Kagan did use judicial conversationalism to interpret the HEROES Act. In dissent, she complained that the majority reads the statute as if “[e]ach aspect of the Secretary’s authority *** is kept sealed in a vacuum-packed container.” To Justice Kagan, the majority’s reading ignored the way the statute’s grants of authority “connect and reinforce each other[.]” How should we properly interpret the statute? By reading the provision in its entirety with an eye to, as Justice Kagan has said in a prior case, “ordinary understanding of how English works[.]”
For the first time, we have more than one look at judicial conversationalism. Like other interpretive canons, it is as fluid and flexible a method as the author wants it to be. Indeed, two different justices use it to reach diametrically opposing positions in the same case, albeit on different grounds. But Biden v. Nebraska does indicate that judicial conversationalism is growing and likely here to stay. I think it is fair to say that we can expect more vigorous debates about the meaning of precedent and statutory text through the lens of how ordinary people communicate. Or, to be conversational about it, stay tuned.
