Kagan vs. Scalia: Who Won Round One?

The Left has long wanted a Supreme Court Justice who could “stand up to Scalia.” Now that Kagan has written her first opinion, with Scalia the lone dissenter, how did our newest Justice fare?

The case: Ransom v. FIA Card Services

The prize: Whether a chapter 13 debtor can claim as an “ownership cost” an allowance for a car that he has already paid off, thus reducing what he has to pay to creditors.

The winner on the merits: Kagan, against the debtor Mr. Ransom and thus for the credit-card industry. The opinion incorporates much of the reasoning in the first-rate brief by MoFo’s Deanne Maynard.

The winner on the writing: a draw. Kagan holds her own against Scalia, and she even inserts some Scalia-like zingers into her decision on this dry but important issue. Using my Point Made as a guide to persuasive-writing strategies, I’ve pitted the two Justices against each other below:

#4: Don’t Be Fooled

Kagan Scalia
Kagan draws a line in the sand here between the debtor’s claim that Congress wanted to encourage paying off loans and what Kagan says was Congress’s more neutral purpose:

But the choice here is not between thrifty savers and profligate borrowers, as Ransom would have it. Money is fungible: The $14,000 that Ransom spent to purchase his Camry outright was money he did not devote to paying down his credit card debt, and Congress did not express a preference for one use of these funds over the other.[1]

Like Kagan, Scalia sharpens the dispute into a clash, this time between competing views on how to construe “applicable” in the disputed Code provision:

The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with.[2]

#35: That Reminds Me

Kagan Scalia
A time-tested way to use examples persuasively is through the classic parade-of-horribles:

On Ransom’s view, for example, a debtor entering bankruptcy might purchase for a song a junkyard car—“an old, rusted pile of scrap metal [that would] si[t] on cinderblocks in his backyard”—in order to deduct the $471 car-ownership expense and reduce his payment to creditors by that amount.[3]

Realizing the impact of Kagan’s example if left unchecked, Scalia one-ups her “imagined horrible” with a “horrible” example of his own:

As for the Court’s imagined horrible in which “a debtor entering bankruptcy might purchase for a song a junkyard car,” that is fairly matched by the imagined horrible that, under the Court’s scheme, a debtor entering bankruptcy might purchase a junkyard car for a song plus a $10 promissory note payable over several years.[4]

#36: The Starting Gate

Kagan Scalia
Starting more sentences with short conjunctions like “but” or “yet” is one of the easiest ways to speed up your prose. All the more compelling is starting the occasional sentence with an uncommon conjunction like “so”:

So an expense amount is “applicable” within the plain meaning of the statute when it is appropriate, relevant, suitable, or fit.[5]

Starting with the conjunction “for” here, Scalia is channeling a favorite technique of Justice Stevens’s:

For the Court’s more strained interpretation still produces a situation in which a debtor who owes only a single remaining payment on his car gets the full allowance.[6]

#42: A Dash of Style

Kagan Scalia
Dashes are an easy way to add some elegance and variety to your prose. Here, Kagan uses one to elaborate:

If a below-median-income debtor cannot take a deduction for a nonexistent expense, we doubt Congress meant to provide such an allowance to an above-median-income debtor—the very kind of debtor whose perceived abuse of the bankruptcy system inspired Congress to enact the means test.[7]

And here, Scalia uses a dash to set off an example:

Section 707(b)(2)(A)(ii)(I) itself authorizes deductions for a host of expenses—health and disability insurance, for example—only to the extent that they are “actual . . .expenses” that are “reasonably necessary.”[8]

#43: Good Bedfellows

Kagan Scalia
Many lawyers and judges needlessly fear semicolons. They are a great tool for drawing stark contrasts, as Kagan does here:

The word “applicable” is not necessary to accomplish that result; it is necessary only for the different purpose of dividing debtors eligible to make use of the tables from those who are not.[9]

And as Scalia does here, giving his own spin on a contrast Kagan drew:

Its opinion does not, it says, find [the Standards] to be incorporated by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must make some loan or lease payments.”[10]

#45: Take Me by the Hand

Kagan Scalia
Like all great writers, the Supreme Court Justices are generous, even creative, in their use of transition words and phrases. Here Kagan uses “as against all this” to make Ransom’s position look inconsistent with what came before:

As against all this, Ransom argues that his reading is necessary to account for the means test’s distinction between “applicable” and “actual” expenses.[11]

And here, Scalia uses “true enough” as an alternative to the more common “to be sure”:

True enough, the opinion says that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as it is not “at odds with the statutory language.”[12]

[1] Ransom v. FIA Card Services, 562 U. S. ____ (2011); slip op. at 17. [“Kagan opinion”].
[2] Ransom v. FIA Card Services, 562 U. S. ____ (2011); (Scalia. J., dissenting) slip op. dissent at 2. [“Scalia dissent”].
[3] Kagan opinion at 16-17. Internal citation omitted.
[4] Scalia dissent at 4.
[5] Kagan opinion at 7.
[6] Scalia dissent at 4.
[7] Kagan opinion at 8 n. 5.
[8] Scalia dissent at 3.
[9] Kagan opinion at 12.
[10] Scalia dissent at n. *.
[11] Kagan opinion at 13.
[12] Scalia at dissent n. *.

Order Point Made

Order Point Taken

Order Deal Struck