Two New Justices. Two New FAA Opinions. Let the Kavanaugh v. Gorsuch Writing Face-Off Begin!

CategoryJustice Kavanaugh
(Schein v. Archer and White Sales)
Justice Gorsuch
(New Prime Inc. v. Oliveira)
BriefCatch Flow Index100/100100/100
BriefCatch Punchiness Score93/10094/100
Greatest competitive advantage on the soon-to-be-launched new BriefCatch scalesBetter than Justice Gorsuch at strong sentence endings.Better than Justice Kavanaugh at varying transitional devices.
Wording habits to imitate
  • Not “pursuant to,” but “under
  • Not “regarding,” “concerning,” or “with respect to,” but about” or “over
  • Not “is applicable to,” but “applies
  • Not “brought an action against,” but “sued
  • Not “prior to,” but “before

  • Not “further [verb],” but “also [verb]
  • Not “resulted in,” but “led to
  • Not “whether or not,” but “whether
  • Not “did not have” authority, but “lacked” authority
  • Not “frequently,” but “often
  • Not “subsequently,” but “later
Best verbs
  • short-circuit the process”
  • “may not engraft its own exceptions onto the statutory text”
  • “[e]ven the term ‘railroad employees’ may have swept more broadly”
  • “Unable to squeeze more from the statute’s text”
Best alliteration—if that’s your thing(Not his thing.)“We’ve long stressed the significance of the statute’s sequencing.” (It almost sounds like Dr. Seuss!)
Adverb angst?Perhaps his clerks are secretly—and improperly—moving his adverbs outside verb phrases. As in “an arbitrator never may do so” instead of “an arbitrator may never do so.” Or “the parties sometimes may disagree” rather than “the parties may sometimes disagree.” (He does get back in the groove later: “This Court has consistently held that parties . . . .”)Too many strained sentence adverbs?
Happily, everyone before us agrees that Mr. Oliveira qualifies as . . . .”

Suggestively, at least one recently published law dictionary defines . . . .”
Sweet transitions“That is true even if,” “Yet,” “But,” “And,” “Nor,” “to be sure,” “in essence,” “after all,” “in any event,” “in sum”“And,” “of course,” “Because,” “So,” “To be sure,” “Still,” “With that,” “But,” “Yet,” “Nor,” “even when”
Contractions?Justice Kavanaugh does not use contractions.“Isn’t,” “doesn’t,” “didn’t,” “wasn’t.” Justice Gorsuch is still the only Justice to use contractions in majority opinions.
Old school“None is persuasive.” (“None are” is acceptable nowadays, I swear!)
New schoolUsing “say” or “says” for code sections, parties’ contentions, and even courts!Justice Gorsuch also uses “says” for code sections and courts: “Among other things, § 1 says that . . . .” And he uses “like” for “such as”: “in disputes like this.”
Punctuation spiceA colon for a full-sentence explanation and a handful of em- dashes. And three question marks!Similar, but more semicolons. And he has retained his idiosyncratic approach to parenthetical asides: “the district court was (once again) required to order arbitration”
Rookie nerves?Some stilted (and uncharacteristic) repetition. “Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract.” And then there’s this head-scratcher: “Archer and White objected, arguing that the dispute was not subject to arbi-tration because Archer and White’s complaint sought injunctive relief, at least in part. According to Archer and White, the parties’ contract barred arbitration of disputes when the plaintiff sought injunctive relief, even if only in part.” (He’s an old-timer now.)
Most educational thing I learnedThat you’re supposed to hyphenate “unheard-of” in “It is not unheard-of for one fair-minded adjudicator to . . . .” (Though I still haven’t found support for hyphenating this term when it doesn’t precede the noun it modifies. The Supreme Court Copywriter knows how to reach me!)“At the time of the Act’s passage, shipboard surgeons who tended injured sailors were considered ‘seamen.’”
Best populist appeal“But that ship has sailed.”“every question under the sun”
Best nod to the Federalist Society without prompting a concurrence or dissent“[W]e are not at liberty to rewrite the statute passed by Congress and signed by the President.”“If courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk . . . .”
Sentences with idiosyncratic #GorsuchStyle wording or syntax(There’s only one Justice Gorsuch.)“[T]he company insisted that any question about § 1’s application belonged for the arbitrator alone to resolve.”

“In taking up this question, we bear an important caution in mind.”
“And surely that’s a first hint the phrase wasn’t then a term of art bearing some specialized meaning.”

“That word choice may not mean everything, but it does supply further evidence still that Congress used the term ‘contracts of employment’ in a broad sense to capture any contract for the performance of work by workers.”

“They agree, too, that all this came to pass in part because the word ‘employee’ didn’t suffer from the same ‘historical baggage’ of the older common law term ‘servant,’ and because it proved useful when drafting legislation to regulate burgeoning industries and their labor forces in the early 20th century.”

“But if the parties’ extended etymological debate persuades us of anything, it is that care is called for.”

“The courts below did not address it and we granted certiorari only to resolve existing confusion about the application of the Arbitration Act, not to explore other potential avenues for reaching a destination it does not.”

And so forth.

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