Thank you for reading The Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semiretired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].
With 10 majority opinions under her belt, Justice Amy Coney Barrett has put enough words on paper during her tenure thus far to be scrutinized for her writing style.
In a recent series of postings in the always interesting Appellate Advocacy Blog, Utah appellate lawyer John Nielsen has done just that. Nielsen is a shareholder at the Lee Nielsen law firm. The founder of the firm is Thomas Lee, former justice of the Utah Supreme Court, and son of the late Rex Lee, who was U.S. Solicitor General in the Ronald Reagan era. Nielsen has taught appellate practice and writing at both the J. Reuben Clark Law School at BYU and the S.J. Quinney Law School at the University of Utah.
Appellate practice is “just so inherently interesting to me,” Nielsen said in an interview. “I love the idea of a forest view of the law, rather than a tree view of the law. We’re thinking about classes of cases and the law as a whole rather than just discrete problems in single cases.”
With a hat tip toward legal writing pro Ross Guberman, who has analyzed the writing style of many justices, Nielsen decided to take his turn to appraise Barrett’s style, also comparing it to that of Justice Elena Kagan.
Nielsen sees similarities between Barrett and Kagan, though he says that “I do happen to think that Justice Kagan is the best writer on the court. There aren’t many Supreme Court opinions where you could just sit down and understand the complexity very quickly,” but Kagan has the knack.
He admires Kagan’s colloquial language, such as when, in a recent case, she used the phrase “time and again” instead of “repeatedly” or “long.” “Time and again,” Nielsen said, “adds emphasis without distracting from the point. It’s refreshing, and helps speed the reader along.”
Barrett wins praise from Nielsen as well. “I think she is an equally attractive writer, and she uses many of the same principles that Justice Kagan uses, but she uses it so differently. Her style is so much starker and direct.”
Some comments from Nielsen’s analysis of Barrett’s style:
Trim all the fat. “I’ve been struck when I read Justice Barrett’s opinions at how lean they are—they get right to the point, have little ornamentation, and say no more than they need to about the subject at hand. Her opinions are all business. If Justice Kagan’s style is akin to having a relaxed dinner conversation with one of your most interesting friends, full of clever asides, Justice Barrett’s is more like getting a military briefing in wartime, serious and to the point. It’s Sergeant Joe Friday—just the facts, ma’am. It’s very different than many justices, but has an austere, desert-like beauty about it. … Like Justice Kagan and Chief Justice Roberts, Justice Barrett loves to start sentences with short words [such as Most, And, To and So] which helps the reader to glide along.”
Bottom line up front. “Justice Barrett doesn’t leave her reader guessing at what the result will be. As a practitioner, I appreciate this. It can be stressful poking through an opinion trying to figure out whether you prevailed.”
Syllogism, syllogism, syllogism. “When I read a Justice Barrett opinion, I’m always struck with how relentlessly logical it is … the pattern of major premise, minor premise, conclusion is the basic structure underlying almost all legal arguments. In appellate law, the major premise is a statement of the law, the minor premise is the given facts, and the conclusion is applying the law to those facts. Justice Barrett does this constantly.”
Writing about people, not statutes. “Using what Ross Guberman calls the ‘back to life’ technique, Justice Barrett takes a maze of statutes and instead of writing about them in the abstract, talks about a people navigating them in real life in her majority opinion in George v. McDonough: ‘The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.’”
Positive before negative. “It’s almost universal in judicial opinions, but not universal enough in brief writing, so I’ll point it out. Justice Barrett makes her affirmative points about what the real meaning of the law is before dealing with losing arguments and dissenting opinions. A mentor of mine once called this “positive before negative”—say why you’re right before you say why the other side is wrong. It’s rhetorically more pleasing and makes greater logical sense.”