Justice Elena Kagan (2015). Credit: Diego M. Radzinschi / ALM

Justice Elena Kagan adds an apostrophe and “s” to the possessive of Congress. Justice Clarence Thomas only adds an apostrophe. Chief Justice John Roberts Jr. uses sentence fragments for effect—”Tough as a three-dollar steak.” You won't find fragments in the opinions of Justice Anthony Kennedy in recent terms.

Despite some individual differences, the Roberts court displays a more liberal, modern and conversational bent in writing style in general, Jill Barton, a legal writing professor at the University of Miami School of Law, says in her study “Supreme Court Splits…on Grammar and Writing Style.”

“Language and writing are evolving,” Barton told The National Law Journal. “Some of the choices the justices are making reflect a desire to write in a way that isn't dull or overly formal. And they want their prose to be lively and interesting. Many of the justices—especially Roberts and Kagan—take great care in turning a phrase and how to explain complicated concepts. It doesn't all have to be that boring.”

Barton examined every signed opinion, concurrence and dissent from the 2014 and 2015 terms (which included the late Justice Antonin Scalia's opinions). She concluded that the justices usually achieve unanimity on most matters of writing. But on three points of style in particular—the use of conjunctions, possessives and fragments—the justices divide in following traditional or more modern rules.

“If sentence fragments were bad legal writing, we wouldn't have 'Pure applesauce,'” Barton wrote. That colorful and memorable phrase, of course, was Scalia's criticism of the majority opinion in the health care challenge, King v. Burwell.

The justices split 5-4 on whether sentence fragments are useful in their writing.

Justices Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito Jr. are in the conservative camp—none of them used a fragment in any of their opinions during the two terms. The remaining five did use them, but rarely, according to the study.

Kagan uses fragments more often than her four colleagues. For example: in Kimble v. Marvel Entertainment, she wrote, “Maybe. Or, then again, maybe not.” The other four have dropped fragments into their opinions, such as: “So too here,” “Surely not” and “Quite the contrary.”

The high court also splits 5-4 on whether a singular word ending in “s” should get only an apostrophe or an apostrophe plus an “s” to show the possessive, the study found. That division, said Barton, is clearest on the word “Congress.”

Roberts, Scalia, Alito and Kagan add an extra “s” to Congress—Congress's. But the majority—Kennedy, Thomas, Ginsburg, Breyer and Sotomayor—just add the lone apostrophe.

To make matters a little more complicated—or refined—the minority justices add an apostrophe plus “s” to the end of the singular form of a noun but leave off the extra “s” when the noun is in its plural form. So it is Congress's and plants' in the possessive.

Barton also reports the justices divide 6-3 in favor of using “since” when they mean “because,” and 8-1 in favor of starting sentences with “So.”

Barton, also the author of “So Ordered: The Writer's Guide for Aspiring Judges, Judicial Clerks, and Interns,” updated her study with a look at the style of freshman Justice Neil Gorsuch on the style points that she examined in the writings of the other justices. “He tracks Justice Scalia. None of my numbers changed,” Barton said.

Gorsuch, she added, might be taking things a step further. “He uses contractions. In his opening paragraph in his first majority opinion, he used a contraction and later a dozen times more,” she said.

Scalia called contractions “intellectually abominable” but used them only in his dissents—a restraint followed by some of his colleagues, said Barton, adding Gorsuch has shown no such restraint.

“All these style choices reflect a willingness to leave old-fashioned conventions behind and adapt to a more evolving view of language,” she concluded.

 

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