Justice Kagan’s opinions are such target–rich environments for good techniques that I keep coming back. A few more I noticed in the past couple of weeks:
18. Change the grammatical structure mid-stream.
Rhetoriticians call this technique “anacolouthon” (from the Greek meaning “it does not follow”), in which the author/speaker interrupts herself and changes the grammatical structure of a sentence part way through. It is useful to emphasize something through an aside or exclamation:
“And if all that leaves the tiniest doubt—well, still we are not done.” Helix Energy Solutions Group, Inc. v. Hewitt, 598 U.S. 39, 55 n. 5 (2023).
She leaves an air of exasperation with the argument that she’s responding to. And speaking of things not following, she leads into this thought with the line: “That is a non-sequitur to end all non-sequiturs.” This can be overdone or ill-advised in many instances, but can be effective when used sparingly, particularly in oral advocacy.
19. The rhetorical instruction.
Justice Kagan’s writing is just lousy with rhetorical instructions, and to good effect. This is an important part of what gives her opinions an instructional, friendly tone. In Romance languages, this is called the imperative—the command form of a verb. Sounds militaristic, but done correctly, it’s received as an invitation instead of a marching order.
She came out swinging with this one: “More than two dozen times in her first two terms on the Court, Kagan opens a sentence with a direct invocation to the reader, much as a teacher addresses her students.” Laura K. Ray, Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions, 89 Ind. L. J. Supp. 1, 2 (2015).
“Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility—a possibility that you mostly get to control—of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.” Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2838 (2011) (Kagan, J., dissenting).
And the hits just keep on coming this term:
“Now, though, add a layer of complexity to that description: The Secretary has implemented the bona fide executive standard through two separate and slightly different rules, one applying to lower-income employees and the other to higher-income ones.” Helix Energy Solutions Group, Inc. v. Hewitt, 598 U.S. 39, 45 (2023).
“Consider again §602(a)’s text, focusing on how it excludes daily-rate workers.” Id. at 50.
“Suppose (to approximate the compensation scheme here) such a worker is paid $1,000 each day, and usually works seven days a week, for a total of $7,000.” Now suppose he is ill and works just one day in a week, for a total of $1,000.” Id. at 51.
“Suppose a lawyer tells a client that she wishes to “receive her pay on an hourly basis.” The client would understand that the lawyer is proposing an hourly billable rate, not delivery of a paycheck every hour. Or consider a nurse who says she gets paid on a daily basis. She means that she receives compensation only for the days she works—not that she collects a paycheck every day. So too here, an employee receives compensation on a weekly—as opposed to a daily or hourly—basis, as § 602(a) demands, when he gets paid a weekly rate. The provision’s temporal dividing line is not about paycheck frequency.” Id. at 53.
“Recall our task: to decide if a claim is ‘of the type’ Congress thought belonged within a statutory scheme.” Axon Enterprise, Inc. v. FTC, 598 U.S. ___, 10 (2023).
20. Change sentence length and using punctuation to improve flow.
Ross Guberman calls the punctuation technique “freight train,” and notes that breaking up a long sentence with commas or semicolons can make a long sentence seem much shorter than it is, and more effectively connect related thoughts than a series of rapid-fire short sentences would. It also helps to set off that long sentence with shorter ones, for contrast. An example from Justice Kagan:
“But that interpretation of the “weekly basis” phrase—even putting §602(a)’s other language to the side—is not the most natural one. As just suggested, a “basis” for payment typically refers to the unit or method of calculating pay, not the frequency of its distribution. Most simply put, an employee paid on an hourly basis is paid by the hour, an employee paid on a daily basis is paid by the day, and an employee paid on a weekly basis is paid by the week—irrespective of when or how often his employer actually doles out the money. The inclusion of the word “receives” in §602(a) does not change that usual meaning.” Helix Energy Solutions Group, 598 U.S. at 53.
Notice her use of repetition and parallelism (paid on . . . basis, paid by . . .) to create a refrain, improve flow, and connect the ideas together. So good!
And in Axon Enterprise (with citations omitted):
“If an appellate court had ruled in favor of the coal company or the federal employee on review of an agency decision, the court could have remedied the party’s injury. It could have revoked the fine assessed on the company or reinstated the employee with backpay. But not so here. The harm Axon and Cochran allege is “being subjected” to “unconstitutional agency authority”—a “proceeding by an unaccountable ALJ.” That harm may sound a bit abstract; but this Court has made clear that it is “a here-and-now injury.” And—here is the rub—it is impossible to remedy once the proceeding is over, which is when appellate review kicks in.” Axon Enterprise, 598 U.S. at 13.
Long, long, short, long with punctuation to seem short, etc. Really makes for good flow and keeps the reader’s attention.