Elena Kagan the U.S. Supreme Court justice donned her hat as Kagan the law teacher on June 9 as she sorted out the meaning of one of the densest statutory schemes the court has had to rule on in years.
Her opinion in Scialabba v. Cuellar de Osorio dealt with visa eligibility of immigrants’ children when they “age out” and turn 21 while their applications are pending. Kagan adopted the Obama administration’s narrow reading that the law means most applicants will have to go to the “back of the line” when they turn 21, adding years of delay. The different categories to which certain relatives of immigrants are assigned under federal regulations were key to the decision.
“A word to the wise,” Kagan wrote on the third page of the court’s ruling. “Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.”
Describing the statute at issue as “Janus-like,” Kagan wrote, “The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says.”
She also used a vivid metaphor to describe one category of immigrant involved: “If an alien was young when a U.S. citizen sponsored his entry, then Peter Pan-like, he remains young throughout the immigration process.”
Later, in explaining another set of immigration categories, Kagan wrote, “The first two are complex but, with some perseverance, comprehensible. The third — the key provision here — is through and through perplexing.”
Kagan’s writing style, helping the reader slog through statutory provisions that she herself thought were hard to understand, is almost unique among justices, said Ross Guberman, a legal writing trainer and consultant.
“There’s a real candor there,” Guberman said after reading the Scialabba opinion. “She is revealing how hard it is to reach decisions — what tough going it is.” Kagan worked as a law professor and dean at Harvard Law School and as U.S. solicitor general before her appointment to the high court in 2010.
The decision reminded Guberman of Kloeckner v. Solis, a 2012 ruling by Kagan. That was a similar journey through jargon, this time involving the Merit System Protection Board. She walked readers from one statutory provision to the next, at one point pausing to state, “If you need to take a deep breath after all that, you’re not alone.”
Guberman described Kagan’s writing as “almost populist,” because she directs her words to the public, rising above the institution of the court to empathize with the average reader. In a footnote in the immigration ruling, Kagan included an excerpt from the statute, she said, “for the masochists among this opinion’s readers.”
Excerpts from several Kagan opinions will appear in his forthcoming book, “Point Taken: How to Write Like the World’s Greatest Judges,” Guberman said.
While helpful to readers, Kagan’s approach does not always win votes from her colleagues. In last week’s case, her opinion triggered a rare lineup of justices. Only Anthony Kennedy and Ruth Bader Ginsburg joined her opinion. Chief Justice John Roberts Jr. concurred in her judgment but for different reasons. Justice Antonin Scalia joined Roberts’ concurrence. Justice Sonia Sotomayor wrote a dissent, joined by justices Stephen Breyer and Clarence Thomas. Justice Samuel Alito Jr. wrote a separate dissent.
Sotomayor’s dissent was particularly tough on Kagan’s opinion. Without using her name, Sotomayor said Kagan’s plurality opinion is “untenable,” overstates the ambiguity in the law and proceeds from incorrect premises.
“Aged-out children may retain their priority dates so long as they meet a single condition — they must be ‘determined … to be 21 years of age or older for purposes of’ derivative beneficiary status,” Sotomayor wrote. “Because all five categories of aged-out children satisfy this condition, all are entitled to relief.”
Kagan responded sharply, using Sotomayor’s name and stating that her dissent used “a pair of nonsequiturs” and wrongly “accused me of ignoring” a section of the law.
Until the decision June 9, Kagan and Sotomayor, both appointees of President Barack Obama, voted together 90 percent of the time this term, according to SCOTUSblog data.
Contact Tony Mauro at email@example.com.