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.

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