Justice Kagan and Chief Justice Roberts recently gave a pair of remarkable speeches that took up topics like judicial writing, the rule of law, and political polarization. The occasion was the Chief Justice’s receipt of the ALI’s Henry J. Friendly Medal, which Kagan presented. (Video here.)
This “Friendly” award ceremony was aptly named. As Kagan pointed out, she and the Chief had that very week seemed like “two kindred souls” in Andy Warhol Foundation v. Goldsmith, and they carried that amicable attitude with them to the award ceremony. Yet these two figures have of course been sharply at odds in many cases, and they will be again before the summer is done. So, why is Kagan heaping so much praise on the Chief?
Kagan tackles this issue head-on in the following passage (borrowed from a transcript helpfully produced by Ryan Subel):
[The Chief Justice] is a consummate legal craftsman. …
Now, why is this important? Because let’s be frank here, there’s a lot that the Chief and I don’t agree on. … [T]here are some times that I really could tear my hair out about the things he thinks, and I’m sure he would say the exact same thing of me. And those things that we disagree about, they have consequence, they matter, they matter in our society, they matter in people’s lives, and that shouldn’t ever be forgotten.
Having insisted that their disagreements “should never be forgotten,” Kagan promptly ushered them from center stage. What followed was a remarkable discussion—really, a whole theory—of judicial writing:
But still, the kind of judicial craftsmanship that John Roberts exemplifies, and shares with Henry Friendly—his clarity, the intelligibility of his writing and his thought, his analytic precision, his ability to see and organize and make lucid whole areas of law, his ability to explain, not only to lawyers but to a wider public what his decisions are based on, those qualities, they’re more than craft, they are the foundation stones of the rule of law.
One might say there are aspects of law’s internal morality. They are an important part of what separates law from dictate. They enable law to provide a guide for future conduct. They make law something that can actually be followed by other judges and citizens. They offer transparency and accountability. They show how rules of decision are arrived at and they show how to criticize them. And finally, those qualities of the master legal craftsmen, they encourage, even if they don’t guarantee, law that in its substance is careful and restrained and principled.
Kagan’s compact discussion is rich. It envisions good judicial prose as clear – that is, writing that is “lucid” with “intelligibility,” “precision,” and “clarity.” It then links that apparently singular trait with a host of quite distinct values, including democratic legitimacy, predictability, uniformity, transparency, accountability, deliberation, and wisdom. These connections, Kagan suggests, represent “aspects of law’s internal morality.” But only “aspects,” not the whole, since they merely “encourage” substantive justice, without guaranteeing it.
Interestingly, this part of Kagan’s discussion left out the zestier features of celebrated judicial writing, such as jokes, insults, and literary references. By contrast, her recent Warhol dissent (like the majority) exhibited all three of those techniques—sometimes in the same sentence. And Kagan was happy to talk about examples of entertaining writing in other parts of her speech. Could the rhetoric that Kagan enjoys be in tension with the reasoning that she applauds? While scholars have addressed that question (see especially Nina Varsava here), Kagan’s speech skirts the issue.
The Chief Justice, too, was interested in reason and rhetoric. Agreeing with Kagan that Judge Friendly was an avatar for excellence, the Chief heaped praise on his former boss for having “applied reason, not ideology. Analysis, not slogans.” The Chief then drew a pointed contrast:
Now, as a general matter, those principles are good for judges, but they’re also not bad for other officers as well. Yet, much of the public discourse seems today very different. Instead of openness, most views being discussed seem to come prepackaged. Instead of reasoning, you get slogans and shouting. …
But inside the court, there’s cause for optimism. I am happy that I can continue to say that there has never been a voice raised in anger in our conference room. Our court consists of nine appointees by four presidents [sic]. We deal with some of the most controversial issues before the country, yet we maintain collegial relations with each other.
When I wander down the halls and see a colleague, I am always happy to have the chance to chat. Now to be fair, there are many days where I don’t feel like walking down the halls, so you may have to discount that a little bit.
The Chief bought some credibility by cracking a smile at the end. Still, the main picture is of a “collegial” Court within a divided polity. And this passage calls back to Judge Friendly. Whereas public discourse indulges in “slogans,” the justices hew to “reasoning”—just like Friendly did.
It would be easy to dismiss this episode. Maybe it’s just a couple of elites scratching each other’s backs. Maybe it’s beleaguered jurists desperate to burnish a court that affords them so much prestige. Or maybe it’s canny strategy, as each speaker tries to lobby for the other’s future votes.
Perhaps, but I think there is something deeper and more complex going on. The justices maintain a kind of double consciousness about one another. They can know in their bones that their colleagues are wrong, wrong, wrong, and they pointedly say so in written opinions. But they may also know that their adversaries are worthy, competent people who are mostly trying to do their best. The Warhol opinions, in which two ideological allies faced off, provides another example.
That ability to both rebuke and respect—to “disagree agreeably,” as Justice O’Connor frequently put it—isn’t ultimately grounded in either reason or rhetoric. It’s more of an ethic or, perhaps, a sense of perspective. And it seems as critical to our legal culture as it is in short supply.
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If you’ve read this far and are interested in writing on these topics, please consider the preceding post’s call for papers for a 2024 conference.
Re’s Judicata 