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LWP Opinion: Kagan’s Writing Makes Her a Perfect Fit

Elena Kagan and the Chief Justice are known to scuffle. “That’s absolutely startling,” exclaimed Roberts two months ago, after Kagan suggested that a plea agreement with federal prosecutors might not bind other parts of the government. “Startling and dangerous,” wrote Roberts earlier this month about an argument she advanced for the government in an animal-cruelty case.

These clashes aside, Roberts and Kagan share more than just relative youth and Harvard pedigrees. When it comes to the key skill a Justice needs—writing to persuade other Justices and the public alike—the two are closer to being soul mates than sparring partners. And that makes Kagan a better fit for the Court than was Justice Sotomayor, a self-proclaimed “average writer” whose decisions on the Second Circuit were competent but uninspired.

Both Roberts and Kagan write in the finest traditions of the Solicitor General’s Office, where Roberts once worked as Deputy and which Kagan now leads. In case after case, that office produces some of the best legal writing in the nation, attaining that rare combination of surgically precise argument and brisk, fresh prose.

This shared experience may explain why Roberts and Kagan write so similarly. Let me offer a few examples.

Roberts

When Roberts was in private practice, he was considered the greatest advocate of his day. Representing Alaska in a Supreme Court case captioned Alaska v. EPA, Roberts had to argue that the “best” technology to control air pollution was in the eye of the beholder. It’s like asking people to pick the “best” car, he said:

“Mario Andretti may select a Ferrari; a college student may choose a Volkswagen Beetle; a family of six a mini-van. A Minnesotan’s choice will doubtless have four-wheel drive; a Floridian’s might well be a convertible. The choices would turn on how the decisionmaker weighed competing priorities such as cost, mileage, safety, cargo space, speed, handling, and so on.”

Lawyers who read that passage remember it years later, often with envy. But how many of them would have thought to compare an abstract environmental standard to the choice of a family car?

In another passage from the brief, Roberts sounds less like a lawyer than like the narrator of A River Runs Through It:

“Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shot-gun—was immortalized by a geologist who dubbed the creek Baker had spotted ‘Red Dog’ Creek.”

Do you think any of the Justices forgot that Irish Setter?

Kagan

Speaking of dogs, Kagan’s writing showed similar zest in a brief she filed for the government in U.S. v. Stevens, which pitted Congress’s efforts to ban animal cruelty against the First Amendment rights of a man who distributed videos of pit-bull fights. In what is no doubt a Supreme Court first, Kagan played the serial-killer card to pump up the government’s interest in stopping animal cruelty:

“Notorious killers, such as Jeffrey Dahmer, Ted Bundy, and David Berkowitz (the ‘Son of Sam’ killer), all committed acts of violence against animals before moving on to human victims.” Nor does Kagan fear using vivid language: “[The banned material] also includes videos of dogfights, hog-dog fights, and cockfights—bloody spectacles of vicious animals forced to fight to the point of exhaustion or death.”

Roberts and Kagan share more than just an eye for detail and an ear for language. Other features of their writing—from their knack for the short sentence to their love for parallel construction—scream “Solicitor General’s Office” as well.

Kagan’s first-rate writing may not sway other Justices’ votes, but it will likely earn their respect. At the very least, her persuasive writing skills make her a far better fit than her lack of judicial experience would suggest.

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The President of Legal Writing Pro, Ross Guberman is an adjunct professor at George Washington University Law School and the author of Point Made: How to Write Like the Nation’s Top Advocates, to be published by Oxford University Press.

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