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Faculty in Focus: McArdle on Kavanaugh’s Judicial Rhetoric

July 16, 2018

We have a nominee for the Supreme Court.

Here’s what Professor Andrea McArdle, our resident expert on judicial rhetoric, wants you to know.

 

Supreme Court nominee Brett Kavanaugh
District of Columbia Circuit Court Judge Brett Kavanaugh, nominated earlier this week by President Trump to fill the Supreme Court vacancy left by retiring Justice Anthony Kennedy, has a reputation for clear writing.
The opinions of Judge Kavanaugh that have drawn attention are mainly a number of his dissents, including dissents from rulings by the full D.C. Circuit, sitting en banc, denying petitions by unsuccessful parties for a rehearing before the full Court. These en banc opinions are consequential because they include the views of multiple members of the D.C. Circuit, an influential and visible appellate court that has heard some significant challenges to the nation’s governing and regulatory structure.  When Judge Kavanaugh writes a dissent from a denial of a petition for rehearing en banc, he’s writing not only for the other judges in the Circuit, but also undoubtedly aware that the opinion will be closely followed.
 
As a dissenter, Judge Kavanaugh exhibits characteristics of what I’ve described as an identifiable rhetoric of dissent, which flows from a dissent’s function of calling attention to alleged flaws in the majority’s approach. This rhetoric generally speaks with a heightened emphasis, specificity, and a pointed responsiveness to the main opinion from which the dissenter differs.  A number of Judge Kavanaugh’s opinions use clarifying techniques, such as strong lead-in sentences, transitions, pointed questions, informal expressions, listing, summarizing, and repetition, that serve a dissenter’s function. These features seem designed as well to reach a broader public, not just law-trained readers. It’s not surprising that a judge whose work will be read closely by multiple audiences would strive to find ways to be particularly clear, whether or not writing in dissent. It’s an approach to writing that a number of Supreme Court Justices, including Justice Kagan, have applied effectively. And, of course, clear writing should be a goal of all legal writers, not just members of the judiciary.
For a deep-dive on Kavanaugh’s writing and what we can learn from it, head to Law 360 to read the full article quoting Professor McArdle here.

 

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