How the Supreme Court Writes Now

Read Jill Barton’s article “A Supreme Writing Revolution” from TLJ No. 03

Jill Barton’s em dashes came in without spaces, and I left them alone.

That was harder than it sounds. At TLJ, we put a space on each side of the dash — like this — and I’ve grown attached to the air. But when a legal writing professor has spent five years reading every Supreme Court opinion since 2018, you don’t go in with a red pen. You ask questions.

So I did, for our “Behind the Article” series. Barton is a professor and the legal writing director at the University of Miami School of Law, a former appellate judicial clerk and an award-winning former Associated Press journalist. Her book, “The Supreme Guide to Writing,” grew out of those 10,000 pages, and two of its chapters appear in Trial Lawyer’s Journal No. 03 as “A Supreme Writing Revolution.”

The project began the way most writing projects do, with a small and irritating question. A comma. A dash. A preposition parked at the end of a sentence.

“It started just with a simple question, which I think all writers encounter all the time, like, what am I supposed to do here?” Barton said.

Her grammar books disagreed with one another, so she went to a higher authority. “And I would ask, what does Elena Kagan do if she encounters this situation? Or what does John Roberts do in this situation?” Where the justices split, she sided with the majority. Five votes wins, in grammar as in everything else, and that rule settles more than 30 debates on legal grammar and style.

Heretofore, whereby and other endangered species

What she found would surprise most lawyers. The justices have gone plain. They end sentences with prepositions. They use fragments. They start sentences with “and,” “but” and “so” far more often than with “however,” “therefore” or “accordingly.”

“But the justices do this 10 to one,” Barton said.

Contractions were scarce at the court for years. Justice Antonin Scalia called them “intellectually abominable.” Then Justice Neil Gorsuch arrived in 2017 and started using them, and today eight of the nine justices do. Gorsuch, she said, uses them on every single page.

And “whereby,” that most lawyerly of words? In five years and 10,000 pages, the justices used it just 13 times. Six of those were inside quotations.

Law students still reach for it, Barton said, because they want to write the way they think lawyers are supposed to write. The trouble is that “bad writing begets bad writing, because if we see the word ‘whereby,’ it’s gonna stick in our head and we’re gonna use it again.”

The $5 million comma

None of this means anything goes. “I wanted to show that good writing is flexible,” Barton said. But some rules hold.

Maine’s legislative drafting manual told lawmakers to skip the serial comma, and they did, in an overtime law. “Well, obviously that was very confusing,” Barton said. “It led to a lawsuit, it led to years of litigation, and then eventually a five-million-dollar settlement, which makes it a very expensive comma.”

The justices always use the serial comma, and Barton says legal writers should too.

Applesauce, in moderation

Scalia gave the court “jiggery-pokery,” “argle-bargle” and “pure applesauce.” Should a trial lawyer try the same?

“I don’t know that everyone should be dropping ‘pure applesauce’ into their opinions when they’re talking about opposing counsel’s argument,” Barton said.

Judges ask her a version of the same question. “Well, sure, the Supreme Court can do that, but what can I do?” Her answer is to start small, because “just changing your conjunctions can really speed up your writing.”

What about AI?

Her students are wary, and for good reason: They’ll sit for the bar exam without the internet or AI. “And we want to produce lawyers who can still think for themselves,” Barton said. Still, they use it to catch grammar and formatting mistakes, and some feed a day’s torts or contracts notes into Google NotebookLM, which turns them into a podcast for the commute.

One change for tomorrow

I asked Barton for the single biggest change a trial lawyer could make to a brief or demand letter.

Find the big conjunctive adverbs, the “moreover,” “however” and “nonetheless,” and replace them with “but,” “and” or “so.” Then read the page back and listen to the rhythm. “I think that it would build more momentum, it would make it more concise,” she said.

She’d also break long sentences into short ones and talk to the reader directly. The justices now use “you” and its variations nearly 300 times a year, Barton said, 40% more than five years earlier.

“We live in a really fast-paced world,” she said. “So the quicker we can get to the point, I think the better off we’ll all be.”

Maybe we should all follow that advice.

Read “A Supreme Writing Revolution: How the Justices Write Now” in Trial Lawyer’s Journal: https://www.triallawyersjournal.com/articles/a-supreme-writing-revolution/

“The Supreme Guide to Writing” is available from Oxford University Press: https://global.oup.com/academic/product/the-supreme-guide-to-writing-9780197754368