This year’s biggest surprise at the Supreme Court: Elena Kagan’s prose.

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.