Bench Memos

Justice Kennedy and Ernest Hemingway

By the standards of Supreme Court justices, Anthony Kennedy is a painfully bad writer. I’d think that’s a proposition that would earn a consensus across the ideological spectrum. So I was especially amused—but, given his pompous self-regard, not surprised—to read this passage from a Wall Street Journal article yesterday about the use of adverbs in legal writing:

On the Supreme Court, Associate Justice Anthony Kennedy has assiduously sought to banish [adverbs] from his own prose.

“I do not like adverbs,” he once explained in an interview with [legal-writing guru Bryan] Garner. “I noticed once that Hemingway had no adverbs, or very few, very few. And I think adverbs are a cop-out,” he said.

Avoiding adverbs “forces you to confront the significance of your word choice,” Justice Kennedy said. “You just discipline yourself to choose your words more carefully.”

Ah, yes, what a careful and disciplined writer Kennedy is.

I’m reliably informed that Kennedy does indeed have an (irrational) animus against adverbs ending in ly and that he instructs his law clerks to avoid them. But rather than simply drop the adverbial sense, Kennedy instead substitutes wordier adverbial phrases or rewrites the passage more awkwardly.

A quick review of one of his opinions (Lee v. Weisman) provides a few apparent examples:

… provisions the Fourteenth Amendment makes applicable with full force [instead of fully applicable] to the States and their school districts. 

High school graduations are such an integral part of American cultural life that we can with confidence [instead of confidently] describe their customary features.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet …. [instead of Providence school officials have customarily provided]

Similarly, Kennedy routinely writes “with respect, I dissent” rather than “I respectfully dissent,” even in contexts in which the former is markedly more awkward: e.g., “For these reasons, and with respect, I dissent” and “That is why, with respect, I dissent.”

But Kennedy’s recent brief concurrence in Hobby Lobby has a surprising number of –ly adverbs, including three in the last full paragraph (unduly, closely, precisely). That’s yet another indication that he wrote that murky opinion in a hurry.

Most Popular

Politics & Policy

Hillary Ruins the Plan

Editor’s note: Andrew C. McCarthy’s new book is Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. This is the first in a series of excerpts.  There really was a collusion plot. It really did target our election system. It absolutely sought to usurp our capacity for ... Read More
Economy & Business

The Great Mystery

Kevin Williamson disputes my characterization of his riposte. He writes: I wrote that people can choose what kind of work they want to do, and what kind of services they want to consume, without any help from Michael. Kevin then accuses me of being a stouthearted defender of the “Real America.” If ... Read More

Another Pop-Culture Christian Loses His Faith

It’s happened again. For the second time in three weeks, a prominent (at least in Evangelical circles) Christian has renounced his faith. In July, it was Josh Harris, a pastor and author of the mega-best-selling purity-culture book I Kissed Dating Goodbye. This month, it’s Hillsong United songwriter and ... Read More

‘Good Verse, Bad Verse, and Chaos’

I love reading Sarah Ruden, and I’ve enjoyed the attention given to Walt Whitman in these pages over the last few days. Ruden gives the poet the back of her hand for being championed by — angels and ministers of grace, defend us! — intellectuals and professors, a poet “whom ordinary Americans most ... Read More