Elena Kagan’s dissent in Lockhart v. United States shows she’s Scalia’s successor as the best writer on the Supreme Court.

Elena Kagan Is Scalia’s Successor as the Best Writer on the Supreme Court

Elena Kagan Is Scalia’s Successor as the Best Writer on the Supreme Court

The law, lawyers, and the court.
March 1 2016 2:07 PM

Elena Kagan Is the Best Writer on the Supreme Court

Her dissent in Lockhart v. United States shows she’s also Antonin Scalia’s unlikely intellectual heir.

Elena Kagan.
Justice Elena Kagan.

Paul Morigi/Getty Images

When Justice Clarence Thomas broke his decade-long silence on Monday to defend the Second Amendment rights of domestic abusers, court-watchers speculated that the famously reticent justice might step up to fill the conservative vacuum created by the death of Justice Antonin Scalia. Thomas may well position himself as the right flank’s anchor, and perhaps even its bomb-thrower. But a decision handed down on Tuesday suggests that Scalia’s other legacy—his dedication to interpreting statutes in accordance with their text and plain meaning—will be taken up by a frequent ideological opponent: Justice Elena Kagan.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Tuesday’s decision in the case Lockhart v. United States divided the court in an unusual 6–2 scramble: Justice Sonia Sotomayor writing for the majority (joined by the conservatives and Justice Ruth Bader Ginsburg), Kagan writing for the dissent (joined by Justice Stephen Breyer). You can bet that Scalia had previously signed onto Kagan’s dissent. Her arguments neatly track his questions at oral arguments, and her opinion is written in a delightfully Scalian manner that seems calculated to draw his vote.


Lockhart was, in one sense, a case about grammar. At issue was a sloppily written federal law, a statute creating mandatory minimums for child pornographers. Under that statute, anybody caught possessing child pornography is subject to a 10-year mandatory minimum sentence if he has a prior state court conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Lower courts split on a crucial question: Does the phrase “involving a minor or ward” apply to all three crimes, or does it just relate to an “abusive sexual conduct” conviction? The more lenient interpretation sees “involving a minor or ward” as a limiting clause, restricting the mandatory minimum to child pornography convicts who sexually abused minors. The stricter interpretation views that clause as a modifier only to “abusive sexual conduct.” In that case, the mandatory minimum could kick in when a child pornography convict sexually abuses adults.

Writing for the majority, Sotomayor takes the strict view. Applying the “rule of the last antecedent,” Sotomayor explains that “a limiting clause or phrase” should “ordinarily be read as modifying only the noun or phrase that it immediately follows.” She also points to three chapters of the Federal Criminal Code. The first is titled “Aggravated sexual abuse,” the second “Sexual abuse,” and the third “Sexual abuse of a minor or ward.” Clearly, Sotomayor writes, Congress viewed these three categories as distinct, and only meant the “minor or ward” clause to limit the last one. As a result, Avondale Lockhart—a child pornographer who attempted to rape his adult girlfriend—must spend the next decade of his life in prison.

Kagan is having none of this last antecedent applesauce. She prefers the “series-qualifier canon,” which holds that a modifier at the end of a straightforward, parallel list “normally applies to the entire series.” That interpretive practice “boasts a fancy name” Kagan admits, but “it reflects the completely ordinary way that people speak and listen, write and read.”

Then Kagan deploys her favorite trick, breezily laying out a colloquial argument for her complex case. “Imagine,” Kagan writes, “a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.” She continues:

Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.

“That ordinary understanding of how English works,” Kagan explains, “in speech and writing alike, should decide this case.” By simply reading the law’s text and contemplating its ordinary meaning, the court should recognize that “sexual abuse of a minor or ward” is meant to apply to each category of crime.

Sotomayor disputes Kagan’s folksy pragmatism. “No one,” she insists, would mistake the statute’s “odd repetition and inelegant phrasing for a reflection of the accumulated wisdom of everyday speech patterns”:

It would be as if a friend asked you to get her tart lemons, sour lemons, or sour fruit from Mexico. If you brought back lemons from California, but your friend insisted that she was using customary speech and obviously asked for Mexican fruit only, you would be forgiven for disagreeing on both counts.

But Kagan cooks up a nice retort to “the majority’s own made-up sentence”:

If a friend asked you “to get her tart lemons, sour lemons, or sour fruit from Mexico,” you might well think her list of terms perplexing: You might puzzle over the difference between tart and sour lemons, and wonder why she had specifically mentioned lemons when she apparently would be happy with sour fruit of any kind. But of one thing, you would have no doubt: Your friend wants some produce from Mexico; it would not do to get her, say, sour lemons from Vietnam. However weird the way she listed fruits—or the way [the statute in question] lists offenses—the modifying clause still refers to them all.

Then Kagan instructs readers to “pick up a journal, or a book, or for that matter a Supreme Court opinion” and look for “sentences having the same structure of the statutory provision at issue here.” You’ll quickly discover that “the series-qualifier principle works.” Just in case you’re “too busy to carry out this homework assignment,” the justice does the work for you, listing five recent Supreme Court opinions that follow the series-qualifier principle.

Kagan also sneaks in a bit of legislative history to prove her point, which Scalia would never have countenanced. But her closing argument essentially paraphrases Scalia’s comment during oral arguments that the rule of lenity—which dictates that an ambiguous criminal law should be resolved in favor of the defendant—should apply here. “At the very least,” Kagan writes, the rule of lenity “should tip the scales in Lockhart’s favor,” because the majority does not “unambiguously” demonstrate that the critical clause does not apply to all three crimes. “But in fact,” she concludes, “Lockhart’s case is stronger”:

Consider the following sentence, summarizing various points made above: “The series-qualifier principle, the legislative history, and the rule of lenity discussed in this opinion all point in the same direction.” Now answer the following question: Has only the rule of lenity been discussed in this opinion, or have the series-qualifier principle and the legislative history been discussed as well? Even had you not read the preceding 16-plus pages, you would know the right answer—because of the ordinary way all of us use language. That, in the end, is why Lockhart should win.

Lockhart is a minor case about an obscure law. But Kagan uses small cases to lay out her judicial philosophy with wit and pizzazz—just look at her Dr. Seuss–citing fish dissent from last term. It’s a shame her good friend Nino didn’t live to see this opinion come down, though it’s rather sweet to think of him reading the early drafts with a nod of approval.

No justice pushed harder to make the court interpret statutes in accordance with “the ordinary way all of us use language.” When politics got in the way, Scalia occasionally took this idea to absurd extremes, losing sight of his own textualist principles. But for the most part, he moved the court toward a surprisingly populist interpretive philosophy that valued common sense over arcane theorizing. Now it appears that Kagan has decided to assume that mantle. And her clever, spirited Lockhart dissent proves she is more than qualified for the job.