Last month, in her dissent in Yates v. U.S., Justice Kagan reminded us again of why she has earned a reputation for her readable, engaging, even entertaining opinions. Yates involved a prosecution of a fisherman under the Sarbanes-Oxley Act. After a federal agent found that the fisherman had some undersized red grouper in violation of federal regulations, the fisherman tossed his fish overboard to avoid being fined. He was charged with violating the provision of the Sarbanes-Oxley Act that prohibits the destruction of any “tangible object with the intent to impede, obstruct, or influence” a federal investigation. A five-justice majority held that the “tangible objects” protected in Sarbanes-Oxley, which Congress passed in 2002 in an effort to clean up the financial markets, did not include fish. Kagan, joined in dissent by Justices Kennedy, Scalia, and Thomas, disagreed. And she did so with her familiar mix of appeals to common sense and a touch of humor:

As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” … A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).

This is apparently the first time Seuss has ever been cited in a Supreme Court opinion.

As Mark Wilson wrote in a piece in Findlaw on the justice’s “conversational tone,” Kagan has developed a distinctive voice on the bench. “Unlike justices of years past,” he writes, “Kagan seems to want more public involvement in the Court. Conversational, understandable language breaks down the barriers between judges and everyone else.” Laura Krugman Ray wrote an essay last year examining Kagan’s “remarkably conversational” style of writing. “She employs a range of rhetorical strategies to speak directly to the reader, suggesting that her enterprise is less indoctrination than a more congenial mode of persuasion. Leavening her legal prose with colloquial diction, she engages the reader in something approaching an informational, if one-sided, chat.” Ray contrasts this conversational style with Justice Scalia’s “indignant” style, in which he addresses the reader as “a man of common sense whose patience is tried beyond endurance by the follies of his colleagues.” If Scalia is the fiery orator, pronouncing the one true path and denouncing any deviation from it, Kagan is the supportive but challenging teacher. “I approach opinion writing much as I used to approach the classroom,” she has said.

Kagan’s efforts to engage her readers, to bring them into her line of thinking by this subtle form of persuasion, brings two points to my mind. First, a point of historical perspective. How distinctive and innovative is her approach to writing opinions? Contrary to Wilson’s suggestion that she is breaking from a pattern set by “justices of years past,” it would seem that there have always been justices who seek to engage an audience broader than the community of legal professionals. The famously aphoristic style of Justice Holmes was intended to speak to a broader audience, as were the stylish phrasings of Justice Jackson. Chief Justice Warren lacked the artistry of Holmes or Jackson, but his writing had a certain directness that transcended the language of bench and bar—sometimes quite self-consciously so, as when he wrote the Brown decision with the goal of making it short, readable, and non-accusatory. Among the justices from the not-too-distant past, Hugo Black might be the one who best represents a tradition of writing direct, accessible judicial prose. All of this is to say that while Justice Kagan is certainly charting her own course by crafting a writing style appropriate for present-day sensibilities, the goal of writing opinions for a broader audience is far from new.

This brings me to a second point: Who is Justice Kagan writing for? Does the style of writing affect the quantity or quality of public discourse surrounding Court opinions? It is hard not to admire efforts of justices to break out from the over-long, stilted, legalistic rhetorical conventions of legal opinions. If nothing else, her colorful style helps to hold the attention of the tired law student reading a casebook in the wee hours of the night. It livens up the blogosphere for a few days. It will enhance her reputation in the history books. In the end, however, does it really achieve what I assume is Kagan’s primary intention, which is to reach out and persuade a broader audience? It is hard to know, of course. As is generally the case when it comes to examining the relationship between the justices and the American people, the communication pathways between the Court and its potential audiences are complex and often dysfunctional. Regardless, Justice Kagan should be applauded for making an effort to break through these obstacles.