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Kagan's Conversational Tone Gets the Public Involved in Opinions

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By Mark Wilson, Esq. on March 09, 2015 11:01 AM

Take a walk through the judicial opinions of Justice Elena Kagan, the most recent addition to the U.S. Supreme Court. You'll probably find something in them that you won't see in the other justices' opinions.

Contractions, for one. Kagan uses them regularly, and that's unusual for someone at the highest echelon of legal writing. Most judges think contractions are too colloquial; judicial opinions are supposed to be formal, with the kind of tone that God probably used when he gave Moses those Ten Commandments.

Kagan thinks differently. Beyond using contractions, her opinions have a supreme readability. For example, in the recent Kansas v. Nebraska opinion, she told a story, breaking down the facts of an otherwise-boring water rights dispute into something easy to understand and, dare we say it, fun.

It didn't hurt that Kagan injected some humor into that story, either, sprinkling water puns throughout just to keep us on our toes. ("All was smooth sailing for decades, until Kansas complained to this Court about Nebraska's increased pumping of groundwater," she says, introducing the 1998 dispute between the states, and then, leading into the most recent dispute, "But there were more rapids ahead.")

Out With the Lawyer Latin and Walls of Text

Justice Kagan is not alone among federal judges. Prominent jurists like Ninth Circuit Judge Alex Kozinski and Seventh Circuit Judge Richard Posner also take a more conversational tone in their opinions. The reason why is clear: In order to promote greater understanding of legal opinions and the law. And the reason why courts need to promote more understanding is because more understanding increases legitimacy.

Complaints about legal writing being inaccessible isn't new. Professor Teresa Phelps wrote in a 1986 article in Southwestern Law Journal, "For centuries legal writing has been described as wordy, abstruse, and unintelligible." She goes on to say that lawyers write that way because they fail to understand that all writing is a conversation; lawyers "persist in a somewhat romantic idea of the legal writer as a solitary figure struggling alone to say what he means."

Judge Learned Hand usually comes to mind when we think of legal brilliance, but when was the last time you read United States v. Carroll Towing Co.? Hand's paragraphs are large, his sentences complex, and he is unable to help the audience keep straight a cast of characters that includes the Pennsylvania Railroad, the tug charter, the tugboat, the towing company, and the barge owner.

That's not Hand's fault, though. Complexity was the name of the game in legal writing even in 1947. At that time, few groups outside of lawyers, judges, law students, and professors would have any reason to read a judicial opinion. Legal language could be obscure, and syntax unreadable, because only a cabal of those "in the know" would need to understand.

We'd Love to Be Involved, but Judges Don't Make It Easy

In the 21st century, however, that cabal is gone. People talk about the law all the time, as though they were talking about the weather. The Supreme Court is more popular than ever. Justice Ruth Bader Ginsburg has achieved something of a pop culture icon status as "The Notorious RBG." Knowing about the law is cool now, and everyone wants to be able to have an opinion about it.

At the same time, though, the Supreme Court remains secluded behind mahogany panels. No one but the nine justices knows what goes on when they meet for their weekly conferences. The only thing we get to see is the output, in the form of the opinions that reflect "what the law is."

Unlike justices of years past, Kagan seems to want more public involvement in the Court. Conversational, understandable language breaks down the barriers between judges and everyone else. We're charged with knowing the law and following it, even if we can't understand what the law is saying because its language is so opaque. That doesn't seem particularly fair, and judges like Kagan, Kozinski, and Posner seem to know it. Their writing, rather than sounding like a unilateral pronouncement, sounds almost like an attempt at persuading the public they're correct. They certainly don't have to persuade -- the Constitution tells us that they're the authorities -- but in terms of real-world buy-in, "because the Constitution says so" is a pretty flimsy answer to the question "Why should we care what you have to say?"

Let's Have a Conversation

Of Kagan, Professor Laura Ray observed in a 2014 article in the Indiana Law Review, "She employs a range of rhetorical strategies to speak directly to the reader, suggesting that her enterprise is less indoctrination than a more congenial mode of persuasion."

Consider the hypothetical she levied at the petitioner's attorney in last week's Affordable Care Act case. Justice Breyer was trying to get Michael Carvin to explain his interpretation of what the ACA means by "such Exchange." Instead of using the language of the statute, Kagan gave Carvin a "simple daily life kind of example":

So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. OK? So my first clerk, I say, Will, I'd like you to write me a memo. And I say, Elizabeth, I want you to edit Will's memo once he's done. And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?

That hypothetical wasn't actually designed for Carvin, who is perfectly capable of debating the meaning of the statute in its own words. That hypothetical was directed toward onlookers and the press, helping us to understand what, exactly, this whole argument about "such Exchange" was all about. It's hard to engage in the process of forming a reasoned opinion about a political issue when you don't understand the issue in the first place. Kagan -- ever the teacher, as Professor Ray points out -- gave the public a translation so they could decide for themselves.

That way, even when members of the public agree or disagree with the outcome in King v. Burwell, they'll at least know why they have that opinion. The law ceases to be a jumble of unintelligible Latin (or unintelligible English, as the case may be); instead, it's accessible to everyone for their understanding and commentary, which, after all, is how the law should be in a democracy.

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