Kagan uses contractions in dissents, but not majority opinions because her “colleagues” (Scalia) don’t like it

August 27th, 2015

Bryan Garner, in his latest interview with Justice Kagan, extracted a fascinating gem.

Garner also noted that unlike some justices, Kagan uses contractions like “don’t” in her opinions. Kagan said she only does so in dissents, because those represent a more individual opinion than the judgment of the entire majority. “Some of my colleagues don’t like it,” she said. “At least one justice has given me a little grief” for using contractions.

I love how she used a contraction, “don’t,” to say her colleagues dislike contractions.

We often discuss the difficulties of writing a majority opinion from a substantive perspective–trying to keep everyone on board. But there’s also the technical aspect. Judges may grumble at prose as well. This is a delicate issue. From my time clerking, one of the big battles was the Oxford comma. A certain judge who shall go unnamed refused to use the Oxford comma, no matter how often he was asked to do so. After a while, the other judges on the court stopped making the suggestion to add the Oxford comma. Perhaps Kagan’s colleagues are more persistent about contractions.  I’m going to take a wild guess that it was her hunting buddy Nino. Recall that Garner and Scalia’s book almost fell apart over the contraction:

The work was sometimes rough going—“Reading Law” alone took two hundred and sixteen drafts. “Justice Scalia is an intellectual pugilist, throwing some very hard punches,” Garner explained. “But he wanted to see what I had coming back. He’ll work out positions by taking a strong stance and seeing what you have.” . . . In one of their darker moments, the book was almost cancelled—over a dispute about grammatical contractions, like “don’t” and “can’t,” that they had to leave unresolved. (Garner deems them acceptable in legal writing; Scalia, the only child of a professor of Romance languages, finds them “intellectually abominable, but commercially reasonable.”) “And yet,” Garner said, “Justice Scalia and I have not yet found a case that we would decide differently. We begin and end with the words of the text.”

Elsewhere, Scalia told Nina Totenberg that “using contractions comes off as an attempt to be ‘buddy-buddy’ with the judge.”

A quick search of the Supreme Court database on WestLaw reveals only a handful of don’ts (plural of don’t?) in recent years, excluding where the Court was quoting something else. Roberts and Kagan are the worst offenders. Here is a sampling:

  • According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2430 (2015) (Roberts, C.J.).
  • To my knowledge, no court has *1092 ever read any such provision to exclude things that don’t record or preserve data; rather, all courts have adhered to the statutory language’s ordinary (i.e., expansive) meaning. Yates v. United States, 135 S. Ct. 1074, 1091-92, 191 L. Ed. 2d 64 (2015) (Kagan, J., dissenting).
  • Biological Father and the Solicitor General argue that a tribe or state agency could provide the requisite remedial services under § 1912(d). Brief for Respondent Birth Father 43; Brief for United States as Amicus Curiae 22. But what if they don’t? And if they don’t, would the adoptive parents have to undertake the task? Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2564, 186 L. Ed. 2d 729 (U.S.S.C. 2013) (Alito, J.).
  • First, a patent is either valid or invalid. The parties of course don’t know the answer with certainty at the outset of litigation; hence the litigation. But the same is true of any hard legal question that is yet to be adjudicated. Just because people don’t know the answer doesn’t mean there is no answer until a court declares one. F.T.C. v. Actavis, Inc., 133 S. Ct. 2223, 2244, 186 L. Ed. 2d 343 (2013) (Roberts, J., dissenting).
  • So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don’t try this at home. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1534, 185 L. Ed. 2d 636 (2013) (Kagan, J., dissenting).
  • If States decide to enroll and comply with those requirements, they get federal money. If they don’t, they don’t. Wos v. E.M.A. ex rel. Johnson, 133 S. Ct. 1391, 1404, 185 L. Ed. 2d 471 (2013) (Roberts, J., dissenting).