‘Stark Choice’ Between Jackson and Kruger

Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill in Washington, D.C., April 28, 2021. (Tom Williams/Pool via Reuters)

In an excellent piece, legal writing guru Ross Guberman compares the quality of the legal writing of Supreme Court contenders Ketanji Brown Jackson and Leondra Kruger and applies his respected BriefCatch software to generate ratings of a sampling of their opinions. [Update: Within minutes of my posting this, Guberman’s piece has apparently been depublished.]

Guberman’s assessment of Jackson’s writing comports with my own assessment, at least if you read him, as I do, to adopt the views underlined here:

Judge Jackson often devotes long paragraph after long paragraph to explaining and applying well-known standards. Some will praise her approach as rigorous and thorough, but others might find it plodding, perhaps even painful….

I’ll leave it to my readers to judge, so to speak, whether the mixed metaphors and turns of phrase here clash and clang, on the one hand, or animate the prose, on the other….

Judge Jackson appears unusually comfortable with the charged rhetoric that you see in many of Justice Sotomayor’s recent dissents.

Guberman also finds Jackson verbose: “She writes . . . a lot: long phrases, long sentences, long paragraphs, long sections, and long opinions.”

In sharp contrast, Guberman praises Kruger for prose that is “unusually clear, spare, and focused” and says she “has a knack for making legal analysis read like clockwork” (praise for good pacing, as I understand it).

Jackson’s BriefCatch ratings are all in the range of 60 to 80, with especially low scores for “Crisp and Punchy.”

Kruger’s are all in the range of 79 to 92, with all but a few over 85.

As Guberman sums things up:

If opinion-writing enters the nomination equation, watch which criteria rise to the fore. Does “good opinion-writing” today have less to do with “writing” than ever before? Will the next Justices be picked for their talents at cobbling together majorities—or for their knack for rallying the troops in dissent?

When I read some of Jackson’s opinions when her D.C. Circuit nomination was pending, I was repeatedly struck how they seemed in need of a thorough edit. If you want to see what I mean, try reading ten or twenty pages of Make the Road New York v. McAleenan. If someone applying for a clerkship submitted a writing sample of that quality, the applicant’s prospects would be damaged.

I’m not at all surprised by Jackson’s low BriefCatch ratings, as I asked my research assistant three months ago to run BriefCatch on, as it happens, the same three opinions that Guberman selected. I also selected three appellate opinions each of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, and asked him to do BriefCatch ratings of them.

Here are Gorsuch’s ratings on his Tenth Circuit opinions in Gutierrez-Brizuela v. Lynch, De Niz Robles v. Lynch, and Novell, Inc. v. Microsoft Corp.:

Here are Kavanaugh’s ratings on his D.C. Circuit opinions in Multicultural Media v. FCC, PHH Corp. v. CFPB, and Fluor v. EPA:

And here are Barrett’s ratings on her Seventh Circuit opinions in Yafai v. Pompeo, U.S. v. Watson, and Doe v. Purdue:

I of course don’t mean to treat BriefCatch ratings as gospel, and it’s impossible for me to be sure that I used representative samples. (I didn’t cherrypick results; the opinions above are the only ones that my assistant checked for each judge.) But Jackson’s poor ratings simply confirm what I think any talented lawyer would readily discern.