Two decisions on arbitration by the two newest U.S. Supreme Court justices handed down within a week of each other recently have given legal writing expert Ross Guberman a fresh chance to compare the writing skills of Justices Neil Gorsuch and Brett Kavanaugh.
His verdict: “a wash,” with Kavanaugh ranked as “a bit dry” and Gorsuch as “a bit labored,” though he gives the opinions the highest possible ratings overall. But guess what: Guberman thinks #GorsuchStyle, a meme that criticized the justice’s writing style in 2017 and 2018 and then faded, has returned.
“For all his gifts, Gorsuch sometimes writes sentences with such unusual syntax that he sounds like he’s from another era—or another country,” said Guberman, president of Legal Writing Pro LLC, and creator of BriefCatch, an online editing tool aimed at making legal briefs and other documents more readable and persuasive.
Exhibit A and B from Gorsuch’s unanimous opinion Tuesday in New Prime Inc. v. Olivieri are these quotes: “But if the parties’ extended etymological debate persuades us of anything, it is that care is called for.” And: “The courts below did not address it and we granted certiorari only to resolve existing confusion about the application of the Arbitration Act, not to explore other potential avenues for reaching a destination it does not.”
Still, Guberman still praises Gorsuch’s writing: “His ‘Gorsuch is a bad writer’ foes might be mistaking his pompous or awkward bits for his entire writing style. He’s still a much brisker and more fluid writer than most justices.”
As for Kavanaugh, his first Supreme Court opinion came Jan. 8 in Henry Schein v. Archer and White Sales. Guberman faulted Kavanaugh’s opinion for moving adverbs outside verb phrases, as in ‘an arbitrator never may do so’ instead of ‘an arbitrator may never do so.’” And Guberman criticized Kavanaugh’s “stilted (and uncharacteristic) repetition” of certain phrases. Guberman scored Kavanaugh favorably when he was a judge on the U.S. Court of Appeals for the D.C. Circuit.
Kavanaugh has joined all of his colleagues—except for Gorsuch—in avoiding contractions such as “doesn’t,” Guberman said. Kavanaugh also avoids alliteration, unlike Gorsuch, who wrote this Dr. Seuss-sounding sentence in the New Prime ruling: “We’ve long stressed the significance of the statute’s sequencing.”
But overall, when Guberman ran the two opinions through his BriefCatch plug-in, both justices were scored at 100 out of 100 for the flow of their writing and almost the same number for “punchiness.” Guberman said, “they both use plenty of transitions, vary their sentences, and favor crisp, punchy words.”
At some level, the justices’ colleagues must have agreed that the opinions were well done. Both decisions garnered the unanimous support of every other participating justice—even though Kavanaugh’s opinion favored arbitration and Gorsuch’s went against it.