Elena Kagan is the first Supreme Court justice appointed in almost 40 years who wasn’t a judge before she arrived at the court. In a good way, it shows. Since she was sworn in three summers ago, the evidence has mounted that she is achieving a goal that other justices say they strive for and yet seldom attain: writing readable judicial opinions that non-lawyers can understand.
I have been writing about the court the past three terms, and reading her prose has been as enjoyable as watching her in action. No previous justice has written with her emphasis on the vernacular or so matter-of-factly addressed readers as if our views about a case truly mattered. In a dissent this term about a labor dispute resolved on a technicality, which unfairly deprived the plaintiff of her day in court, she wrote, “The court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it.” She added, “Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again rise.”
She is a master of the topic sentence (“A trip back in time begins to show why”) and the stylish dig (“wrong, wrong, and wrong again”). Yet what puts her in a class by herself is her combination of down-to-earth writing and the ingredients essential to influential opinions: conceptual insight, penetrating legal analysis and argumentative verve.
Her most significant opinion this term was a dissent criticizing a court decision that kept a group of merchants from moving forward with a class action against American Express, even though the cost of individual challenges would be greater than their potential benefit. She wrote: “To a hammer, everything looks like a nail. And to a court bent on diminishing the usefulness of Rule 23” — the federal rule allowing class-action lawsuits — “everything looks like a class action, ready to be dismantled.”
The force of Justice Kagan’s writing advances her generally moderate liberal views, but, just as crucial, it pushes back against conservative justices she often votes against in major cases. Before she joined the court in 2010, the dominance of the five conservatives was bolstered by their aggressiveness and sometimes arrogance at oral arguments and in opinions. Their bravado and occasional bullying haven’t abated much, but she is an effective counterweight.
That involves substance as well as style. In 2011, as her first term closed, Justice Kagan filed an important dissent countering an opinion by Chief Justice John Roberts Jr. that turned the meaning of the First Amendment upside down. He found that Arizona’s campaign finance system “imposes a substantial burden” on the free-speech rights of candidates and independent groups by penalizing them when their private spending triggers more public money for their opponents. In effect, he said, it made private spending worth less.
“There is just one problem,” Justice Kagan pointed out. Rather than a restriction, “The law has quite the opposite effect: It subsidizes and so produces more political speech,” fostering “both the vigorous competition of ideas and its ultimate object — a government responsive to the will of the people.”
Her opinions aren’t always that ambitious, but that could change over time as she gains in seniority and her assignments become even more consequential. What I hope doesn’t change is her plain speaking.