Write on
| Publication year | 2009 |
| Pages | 24 |
| Citation | Vol. 2009 No. 06 Pg. 24 |
Assessing the Legal Writing Style of Amy Coney Barrett
by Greg Johnson, Esq.
In recent articles for this column, I have assessed the legal writing styles of Neil Gorsuch and Brett Kavanaugh, soon after President Trump appointed them to the Supreme Court. It seems fitting, then, that I devote this article to assessing the legal writing style of Amy Coney Barrett, President Trump’s third and final appointment to the Court (we think!). Barrett breaks the mold in that she is the only sitting Justice who did not graduate from Harvard Law School or Yale Law School. Barrett graduated from Notre Dame Law School. So did I. I therefore admit to some alma mater pride in this appointment, though I intend to offer a dispassionate critique of Barrett’s writing style.
Prior to her appointment to the Supreme Court, Barrett served on the Seventh Circuit Court of Appeals for three years. In that time, she authored 79 opinions, three concurrences, and seven dissents.[1] As of this writing, Barrett has authored four opinions for the Supreme Court. I will refer to her Supreme Court opinions at the end of this article, but the bulk of my analysis will focus on her more numerous Seventh Circuit opinions. I read thirty of those opinions for this article. Based on this representative sample, I give Barrett high marks for her legal writing style. She adheres to all of the key principles of Plain English: She writes in the active voice using concrete nouns and vivid verbs. Barrett writes sentences that are short and to-the-point with few surplus or unnecessary words. Barrett establishes coherence and flow through the artful application of explicit and substantive transitions. I will elaborate on these points below with examples from her opinions. I will conclude with some thoughts on Barrett’s legal writing “voice,” comparing it favorably to the legal writing “voice” of my two earlier subjects, Gorsuch and Kavanaugh.
Brevity
Before highlighting particular aspects of Barrett’s writing worth emulating, I offer two over-arching appraisals of her opinions. First, they are short. Any lawyer who has labored through dozens of pages of a typical judicial opinion (that is—all of us) will find Barrett’s approach to judicial opinion writing refreshing. Of the thirty opinions I read (chosen randomly), the longest was twelve pages.[2] And this twelve-page opinion, though modest in length compared to many circuit court opinions, is an outlier in Barrett’s oeuvre. A couple of the opinions I read are seven-to-nine pages, but most average between four and six pages. I hasten to add that these opinions are not summary dismissals of trivial issues. To the contrary, they address important issues like murder, police misconduct, judicial bias, and sex discrimination. Through it all, Barrett succeeds in addressing the parties’ claims forthrightly and respectfully but with an impressive economy of words. (I have sentence counts and word counts of the opinions for any reader interested in finer detail.) Second, Barrett’s opinions deserve praise for their infrequent use of footnotes. Two of the opinions I read have six footnotes.[3] Most of the others have between one and five footnotes (averaging closer to two to three). Two of the opinions have no footnotes at all.[4] Legal writing bliss!
The brevity of Barrett’s opinions is an aspect of her legal writing “voice” I will address in full later: Say what you must to resolve the dispute, but say nothing more after that. This approach comports with that of Chief Justice John Roberts, who has notably urged the Court to adopt a philosophy of judicial minimalism when crafting opinions.[5] In this regard, he has found and acolyte with the Court’s newest appointee.
Crisp, Clear Openings
Now to the particulars. First, Barrett is adept at summarizing cases concisely in opening paragraphs that display all the attributes of fine legal writing. This is true for virtually all of the opinions I read. Space allows me to offer just a few examples of this commendable practice. The openings of Barrett’s opinions not only capture the case, they capture the reader’s attention:
Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence? We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property.[6]
Barrett embeds the Fourth Amendment legal standard into an artfully written paragraph and provides the court’s holding, all within 84 words. Try as I might, I can find no surplus words to omit. Notice how Barrett refers back to the bathrobe, the most memorable word in the opening question, in the court’s holding. Repeating words and referencing back (and forward) creates a thematic quality that holds the paragraph together and improves the reader’s understanding.
Here is another opening paragraph that needs no introduction. Barrett describes the facts, the legal issue, and the court’s holding in 113 words:
Judge Colin S. Bruce sentenced James Atwood to 210 months’ imprisonment for federal drug crimes. While Atwood’s case was pending, Judge Bruce improperly communicated Ex parte with the prosecuting U.S. Attorney’s Office about other cases. The federal recusal statute requires a judge to recuse himself from any proceeding in which his impartiality may reasonably be questioned. The government concedes that the disclosure of Judge Bruce’s ex parte correspondence invited doubt about his impartiality in proceedings involving the Office. Because of the judge’s broad discretion in sentencing, we conclude that Judge Bruce’s failure to recuse himself was not harmless error. We vacate Atwood’s sentence and remand his case for resentencing by a different judge.[7]
The reader needs no other information to understand the case (though, take my word for it, the details of the judge’s communications with the prosecutor would likely only anger you more).
In the following opening, Barrett uses two paragraphs to explain the facts and holding; this opening stands as a paradigm of legal writing efficiency:
Before Edward Acevedo could appear on the 2018 Democratic primary ballot for Cook County Sheriff, he had to obtain a certain number of voter signatures on a nominating petition. He didn’t meet the signature requirement, so he was kept off the ballot. He then sued the Chicago, Cook County, and Illinois electoral boards, arguing that the Cook County signature requirement is unconstitutional because it is more onerous than the signature requirement for statewide offices. According to Acevedo, the comparatively higher county requirement can survive only if it is narrowly tailored to advance a compelling state interest.
Acevedo is wrong. Strict scrutiny is not triggered by the existence of a less burdensome restriction—it is triggered only when the challenged regulation itself imposes a severe burden. Because Acevedo has not alleged that the burden imposed by the Cook County signature requirement is severe, the defendants need not show any justification for it beyond Illinois’s interest in orderly and fair elections. That interest easily justifies the signature requirement here.[8]
Note how each sentence flows logically into the next, satisfying the reader’s expectations. In this, Barrett displays yet another aspect of good legal writing: the effective use of transitions. Effective transitions are the final step good legal writers apply to their drafts. After you have done the hard work of organizing your thoughts in a logical...
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