Five Ways to Write Like Brett Kavanaugh

What’s Judge Kavanaugh like as a writer? Should you follow his lead?

As an opinion writer, Kavanaugh is no Kennedy, his one-time boss. I wouldn’t expect any Casey-like “sweet-mystery-of-life” passage from him, let alone anything as impenetrable as Justice Kennedy’s concurrence in Trump v. Hawaii.

Kavanaugh is also no Gorsuch, even if they did attend the same prep school and clerk for the same Justice. Don’t expect Kavanaugh to mime Gorsuch’s unorthodox syntax, alliterative opening lines, or mini-lecture on Chesterton’s Fence. Unlike Justice Gorsuch, in fact, Judge Kavanaugh takes few risks in his writing, though he did once joke that mandamus for a case would be like “using a chainsaw to carve your holiday turkey.”

Kavanaugh is likely no Scalia, either, at least not in dissent. The fiercest emotion Kavanaugh expresses is . . . mild exasperation. He steers clear of “argle-bargle” and “pure applesauce” land. And I can’t imagine that he would ever follow Justice Scalia’s lead in writing a footnote like this: “If . . . I ever had to join an opinion that began [like Kennedy’s in Obergefell], I would hide my head in a bag.”

Instead, Kavanaugh falls firmly in the Roberts or Kagan opinion-writing camp. And he has the BriefCatch scores to prove it.

In fact, here’s how Judge Kavanaugh fares for the opinion that includes the excerpts below. It’s one of the few opinions in which he sides with an administrative agency, in this case the EPA. Not even the dry, dense, technical subject matter can keep Judge Kavanaugh’s scores out of the stratosphere:

Here are five ways to follow Judge Kavanaugh’s lead.

1. Write a short first sentence introducing a clutter-free opening narrative that orients the reader and stages the conflict.

Imagine the writing discipline—and reader empathy—behind Judge Kavanaugh’s opening passage below. And admire his clean presentation, tight sentence structure, and focus on verbs: “lies,” “remove,” “extract,” “relocate,” “produces,” “lights,” “leaves,” “changes.”

2. Replace long and heavy words and phrases with crisp, fresh alternatives.

How does Judge Kavanaugh manage to earn a perfect BriefCatch Punchiness Index of 100/100 in an opinion about surface mining and administrative law? Because he keeps choosing the right forks in the word-choice road. Sentence after sentence. And page after page.

If that sounds easy, then why do so few lawyers and judges manage to do it? But if it sounds hard, just try to internalize the patterns below.

A precise and efficient stylist, Kavanaugh writes not “with regard to” or “regarding” but “for.” Not “in order to” but “to.” Not “is required to” but “must.” Not “in the event that” but “if.” Not “additionally” but “also.” Not “commonly referred to as” but “known as.” “Not “has the ability to” but “can.” Not “utilization” but “use.” And not “has a right to” but “may.”

And here, Kavanaugh writes not “is applicable to” but “applies.” Not “as a result of” but “because of.” Not “inter alia” but “among other things.” Not “such permit applications” but “those permit applications.” Not “subsequently” but “then.” And not “whether or not” but “whether.”

Of course, if you don’t like to struggle, you could let BriefCatch suggest all these changes automatically!

3. State your opponent’s (or the losing party’s) position fairly, without disdain or editorializing, before you shoot it down.

Few things suggest more confidence than a fair presentation of your opponent’s argument. If it’s as weak as you think, why would you need to relay it in a nervously defensive tone? For another approach, watch how Kavanaugh handles the losing parties’ argument below. As you’ll see in the next section, he’s going to reject it. But by giving them a fair shake, at least at first, he makes his ultimate disagreement all the more persuasive and compelling:

4. Expand your repertoire of transitional devices and other logical signposts, favoring short words and light phrases.

On top of his 100/100 BriefCatch Punchiness Index, Judge Kavanaugh, like Justice Kagan and Chief Justice Roberts, earned a 100/100 Flow Index as well. See below for one of his secrets:

5. Admit that applying the law can be tough while doing what you can to make order out of chaos.

Not everything that makes great legal writing great relates to wording, of course. Sharing a bit of your thinking process can help. As can candor about how doctrine is often hard to apply. Conveying a sort of nerdy wonderment about the law doesn’t hurt, either. But most of all, readers love it when you turn a blob of murky authorities into cogent categories. Judge Kavanaugh manages to do all of the above right here:

Just as honest conservatives freely admit that Elena Kagan is a great writer, honest liberals will say the same about Brett Kavanaugh. Learn what you can from them both!

In the meantime, if you’d like to write more like the best writers in the profession, try BriefCatch today.