JULY 28, 2011
The Supreme Court has included good writers and bad writers during the past two centuries, but the literarily challenged justices have always had a comfortable majority. In the Court’s early days, one of its clumsiest writers was Samuel Chase, who, in addition to being impeached for excessive partisanship, had a weakness for random italics. For example: “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State.” More recently, one of the Court’s most awkward writers was Harry Blackmun, whose artless majority opinion in Roe v. Wade contains a long survey of “ancient attitudes” toward abortion that reads like a high school term paper: “The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practices.”
On the Court today, Anthony Kennedy is the most powerful justice, thanks to his role as the swing vote. He is also, arguably, the most painful writer. His prose alternates between bureaucratic and grandiose, resulting in sentences that manage to be pompous and clueless at the same time, like this gem from Bush v. Gore: “None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere.”
Those justices who are gifted writers may not always be the most powerful. But they tend to be the most memorable, with a knack for translating complex legal arguments into vivid metaphors and crisp aphorisms. In one case alone, for example, Oliver Wendell Holmes coined the term “clear and present danger” as a standard that the government must meet to restrict free speech—and illustrated what he had in mind with an example that is still used today: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Another superb polemicist was Louis Brandeis, whose book Other People’s Money is full of axioms like this one: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
On the current Court, Antonin Scalia has long been regarded as the most dazzling writer. His opinions are a pleasure to read, because they often include sentences like the following: “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.” But, after only a year on the bench, Scalia’s newest colleague, Elena Kagan, is already giving him a run for his money.
ONE OF THE MOST surprising developments of the last term was Kagan’s emergence as an eloquent voice—surprising because it often takes new justices a few terms to hit their rhetorical stride. Samuel Alito is now one of the most analytically self-confident of the conservative justices, but one of his first dissenting opinions, on the military tribunals created by the Bush administration, was dry and legalistic. Sonia Sotomayor, who has been on the court for two terms, has not yet developed a distinctive style; instead, her opinions read much like those she wrote as an appellate judge, focusing on factual details and parsing precedents.
The Court’s best writers tend to do their most striking work in dissent, unconstrained by the need to pacify their colleagues. (Holmes, Brandeis, and Scalia have all been called “The Great Dissenter.”) So it has been with Kagan. In her first year on the Court, she wrote three dissents, two of which combine Scalia’s gift for the sharp aphorism with John Roberts’s powers of analytical dissection. But she also has something more: an ability to puncture her colleagues’ bloodless abstractions and tendentious arguments, and to explain the constitutional stakes in plain language that all citizens can understand.
Kagan’s best dissent came down on the last day of the term, in Arizona Free Enterprise Club v. Bennett. Arizona political action committees had challenged the state’s public campaign financing law. Under this scheme, Arizona gave publicly funded candidates an initial subsidy—about $20,000 in state House races—followed by an additional dollar of matching funds for every dollar that their privately funded opponents spent in excess of the lump sum. Writing for the five conservatives, Roberts struck down this system: Because it was intended to “level the playing field,” he argued, it was a violation of the First Amendment. “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand,” he concluded.
Kagan, writing for the four liberal justices, challenges Roberts in her first sentence. “Imagine two States, each plagued by a corrupt political system,” her opinion begins. Each of these states seeks to avoid the “cancerous effect of this corruption.” In her hypothetical, voters in the first state adopt the campaign finance restrictions the Supreme Court has approved—such as disclosure requirements and lump-sum public subsidies. But this doesn’t work, because the subsidies aren’t large enough to allow publicly funded candidates to run competitive races. Then Kagan asks us to imagine a second state that adopts a matching-fund system like the one used by Arizona. This state encourages candidates to participate, broadens public debate, and ends corruption. “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury,” she declares.
Like good journalism, the best dissents are often colloquial, as if the writer were telling a story about the case to friends over dinner. This was the secret of Holmes’s greatest dissents, which have a breezy disdain for legalisms and technical citations. Kagan is similarly informal—her dissents often read like a really good New York Times op-ed. She likes colorful metaphors—she calls the Arizona program a “Goldilocks solution,” because it provides a “just right” sum to help a candidate compete against others backed by big private donations.
Kagan also connects to the reader by taking us into her confidence. “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?” she asks. “Me too.” The “me too” is an inspired touch—a little badda-bing that has the effect of making the majority look arrogant and out of touch.
Kagan’s real strength, however, is her ability to brush away the legalistic smokescreens of justices on the opposing side. Roberts’s majority opinion is based on the premise that the Arizona law restricts speech. “There is just one problem,” she notes wryly. “Arizona’s matching funds provision does not restrict, but instead subsidizes, speech.” She also calls the majority opinion a clear departure from precedent: “In case after case, year upon year,” she writes, the Court has struck down restrictions on speech while upholding subsidies of speech. Finally, she points out that the petitioners in the case, who included candidates for state offices, actually had access to the state subsidies. “They are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance,” she declares. “Some people might call that chutzpah.” This wasn’t the first time the word “chutzpah” had appeared in a Supreme Court opinion: Scalia previously used it in a 1998 case affirming the denial of a National Endowment for the Arts grant to the performance artist Karen Finley. But it was surely the most satisfying.
As in all good dissents, Kagan ends by transcending the particulars of the case and articulating the principles that hang in the balance. “Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it. … Truly, democracy is not a game.”
KAGAN’S OTHER significant dissent, Arizona Christian School Tuition Organization v. Winn, was nearly as good. In that case, Arizona taxpayers challenged a state law that gives tuition tax credits to organizations that then spend the money on scholarships for students attending religious and secular private schools. The petitioners argued that this resulted in public money being used for religious education and was thus illegal under the First Amendment. Again, the conservative justices prevailed, holding that the taxpayers had no legal standing to sue, in a 5-4 opinion written by Justice Kennedy.
In most cases, the word “standing” in a Supreme Court opinion is a warning that you are about to be subjected to prose that could be prescribed to a chronic insomniac. And Kennedy’s majority opinion doesn’t disappoint. “In the English legal tradition, the need to redress an injury resulting from a specific dispute taught the efficacy of judicial resolution and gave legitimacy to judicial decrees,” he writes lugubriously. Kagan, however, cuts through the fog. The decision, she says, “threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion.”
In his majority opinion, Kennedy claims that the Arizona taxpayers lacked standing because the funding of religious schools took the form of a tax credit, rather than an appropriation. Kagan points out that the Court has long allowed taxpayers to bring suits claiming that the government has unconstitutionally subsidized religion through the tax system. Using a vivid analogy, she explains precisely why the distinction is artificial:
Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.
Here, Kagan seems to be appealing to Tea Party sympathizers who opposed the bank bailout but may be inclined to support school vouchers and other religious subsidies. This is a hallmark of the most influential justices, who write not just for their colleagues but also for the press and the public. In a 2008 interview, Scalia said that he viewed his dissents as a form of “advocating for the future.” “Who do you think I’m writing my dissents for? I’m writing for the next generation and for law students,” he said. “I’m not going to persuade my colleagues, and I’m not going to persuade most of the federal bench.”
Of course, Kagan can’t achieve greatness merely by tossing off pithy one-liners. She also needs to provide a positive vision of values in which she believes. Brandeis’s dissents were great not only because of the arguments they attacked, but because of the principles they championed: the curse of bigness, in corporations and in government; the value of the states as “laboratories of democracy”; and the importance of translating constitutional values like privacy and free speech in light of new technologies. It’s still too early to tell what Kagan is most passionate about—aside from a devotion to government neutrality. But Kagan has made a remarkable debut, and, if she develops a positive vision in the years to come, she has the ability to make it resonate far beyond the courtroom.
Jeffrey Rosen is the legal editor of The New Republic. This article originally ran in the August 18, 2011, issue of the magazine.