Justices Kagan and Thomas and the art of judicial writing

McClatchy Washington BureauMarch 5, 2014 

Judicial opinions need not be bloodless. Indeed, a judge or Supreme Court justice performs a public service by making the opinion accessible, and even enjoyable, to the general reader. One way to do this, as any hack journalist will tell you, is to lead with interesting and vivid facts, rather than procedure.

Here, for instance, is how Justice Elena Kagan starts the opening section of her latest opinion, in Rosemund v. United States:

"This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter."

Dig it. The opinion starts like a good crime story, drawing the reader in to the factual world where real people live, breathe and deal drugs. One wants to find out what happened next.

Elsewhere, Justice Kagan invites the reader in with small touches, as when she sets up one argument, only to follow with:

"We think not."

Contrast this with how Justice Clarence Thomas starts the comparable opening section of Lozano v. Alvarez

"To address “the problem of international child abduc­tions during domestic disputes,” Abbott v. Abbott, 560 U. S. 1, 8 (2010), in 1980 the Hague Conference on Private International Law adopted the Convention on the Civil Aspects of International Child Abduction (Hague Conven­tion or Convention), T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.)."

This is congested, clunky and weighted down with so much arid procedure and citation that it is almost literally unreadable for the Average Joe. In Suits & Sentences' humble opinion, it would have been better for Justice Thomas to move up his factual recitation about this sad -- and remember, sad makes a vivid story -- child abduction case. Though he starts in on the facts on page 3, this might be 2 pages more than someone is willing to read if the start is so ugly.





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