Write Like Justice Jackson: 3 Tips from Her First Opinion of the Term

In early December 2023, the U.S. Supreme Court handed down the term’s first opinion in an argued case in Acheson Hotels, LLC v. Laufer. What could have been a watershed standing decision wound up being a dud: In a brief opinion, the Court held that the case was moot.

More interesting, though, was Justice Ketanji Brown Jackson’s opinion concurring in the judgment. She wrote separately to critique the Court’s Munsingwear rule of vacating lower-court judgments that become moot while on appeal. And her separate writing offers three tips for written advocacy.

1. Macro structure. Ever since our 1L legal-writing instructors’ constant reminders, we’ve all thought hard about structure at paragraph level. But truly great legal communicators think about structure at every level. Justice Jackson’s opinion is a case in point. She organizes her argument into three distinct parts. The opening sentence of each part then forms an unmistakable throughline connecting concepts across several pages:
   
   

I: “Mootness and vacatur are distinct concepts.”

II: “Because mootness and vacatur involve different legal analyses, see Part I, supra, I think courts should address them separately.”

III: “Why, then, does the possibility of nullifying a lower court’s judgment by ordering Munsingwear vacatur exist?”

With this clear attention to macro structure, Justice Jackson keeps both her argument and its reader laser-focused.

2. Pose questions. Paragraphs, of course, should generally begin with topic (or topic-ish) sentences. But such sentences needn’t always end with a period. Both for clarity of expression and rhetorical color, consider asking a question. Deployed sparingly and precisely, questions can frame issues and suggest answers. Justice Jackson executes this to perfection, opening a paragraph in the middle of her opinion with a question: “Why, then, does the possibility of nullifying a lower court’s judgment by ordering Munsingwear vacatur exist?” This question both defines the central issue on Justice Jackson’s mind and sows the seeds of doubt she seeks to fertilize. A boring sentence likely wouldn’t have had the same effect.
3. Use colons. Underappreciated and underused, colons deserve attention—and Justice Jackson apparently agrees. In the rhythm of a sentence, colons add pause and emphasis greater than a comma but lesser than a period. Justice Jackson used three colons over nine pages (just the right amount), including to describe her view on Muningwear’s proper role. “I submit that it serves a specific, equitable function: to address any unjust circumstances or unfairness that might stem from the inability to appeal a particular lower court decision, notwithstanding its presumptive validity.” Justice Jackson’s colon usage evokes New York Times copy editor Merrill Perlman’s illustrative instruction: “[T]hink of a colon as a tap on the brake before moving the car into a curve.”