Justice Kagan is the Master of the Parenthetical Aside to Break #SCOTUS Fourth Wall

March 1st, 2015

I remain enamored by Justice Kagan’s writing style, and in particular her colloquial manner. One of her best tools is the parenthetical aside–as if she is breaking the Supreme Court’s proverbial “fourth wall.” Instead of speaking to the U.S. Reports, she is speaking directly to us. Consider a few parentheticals, speaking directly to the audience, in her dissent in Yates v. United States.

So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).

From Alabama and Alaska through Wisconsin and Wyoming (and trust me—in all that come between), States similarly use the terms “tangible objects” and “tangible things” in statutes and rules of all sorts.

That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes.

Section 1519 refers to “any” tangible object, thus indicating (in line with that word’s plain meaning) a tangible object “of whatever kind.”

This Court has time and again recognized that “any” has “an expansive meaning,” bringing within a statute’s reach all types of the item (here, “tangible object”) to which the law refers.

These parentheticals serve no purpose, other than to connect with the reader–and connect they do. When I read a Kagan opinion, I feel like she is having a personal conversation with me. It’s almost like when Zak Morris called a time-out on Saved By The Bell and spoke directly to the camera.

Pound for pound, the Chief is still the best technical writer, and Scalia is the most witty, but I enjoy reading Kagan’s decisions the most. With sentences like these, who wouldn’t:

A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Not a one has limited the phrase’s scope to objects that record or preserve information.

And legislative history, for those who care about it, puts extra icing on a cake already frosted.

In any event, score this as another victory for Florida Man.