Do as I Say, Not as I Do: A Report Card on Plain Language in the United States Supreme Court

This article concerns the extent to which United States Supreme Court Justices are incorporating the plain-language approach to legal writing into their opinions. In 2006 and 2007, legal-writing expert Bryan Garner interviewed eight of the Supreme Court Justices about what constitutes good legal writing. Later, Garner co-authored the book Your Case: The Art of Persuading Judges with Justice Scalia. In that book, the authors made numerous suggestions to lawyers on how to more effectively present their cases to the courts. The interview and book include many plain-English recommendations (such as writing clearly, sign-posting, avoiding legal jargon, and the like).While listening to the interviews and reading Making Your Case, I began to wonder whether Supreme Court Justices are giving back to lawyers in opinions the same thing that the Justices are asking for in briefs – specifically, plain language. In this article, I take some well-agreed plain-language principles (begin with a good summary, keep your average sentence length to about 20-25 words, prefer the active voice, use parties’ names, and make your documents readable) and examine the last majority decision written by each Justice in the 2008–2009 term to create a “snapshot” of the extent to which the Justices are consistently using plain-language principles in their opinions.