Justice Kagan Flow
What Does 100/100 in Flow Look Like? Ask Justice Kagan
BriefCatch awards this excerpt from Justice Elena Kagan a perfect 100/100 in Flow, a proprietary formula that shows how well writers link their points. (The excerpt also earns a stellar 100/100 in Plain English.)
So know that you can reach those heights even when you write about dense material! If you’d like a recipe for better transitions and other signposts, look at some of Kagan’s ingredients highlighted below. (I’ve cut the citations for reading ease.)
And if you want to match wits with her, or just want to improve your writing, get BriefCatch today.
Begin where the majority does—with the rule of the last antecedent. This Court most fully discussed that principle1 in Barnhart v. Thomas, which considered a statute providing that an individual qualifies as disabled if “he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” The Court held, invoking the last-antecedent rule, that the italicized phrase modifies only the term “substantial gainful work,” and not the term “previous work” occurring earlier in the sentence. Two points2 are of especial note. First,3 Barnhart contained a significant caveat: The last-antecedent rule “can assuredly be overcome by other indicia of meaning.” Second,4 the grammatical structure of the provision in Barnhart is nothing like that of the statute in this case: The modifying phrase does not, as here, immediately follow a list of multiple, parallel terms. That is true as well5 in the other instances in which this Court has followed the rule.
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Indeed6, this Court has made clear that the last-antecedent rule does not generally apply to the grammatical construction present here: when “[t]he modifying clause appear[s] . . . at the end of a single, integrated list.” Then, the exact opposite is usually true: As in the examples beginning this opinion, the modifying phrase refers alike to each of the list’s terms. A leading treatise puts the point as follows: “When there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.” That interpretive practice7 of applying the modifier to the whole list boasts a fancy name—the “series-qualifier canon,” see Black’s Law Dictionary 1574 (10th ed. 2014)—but, as my opening examples show, it reflects the completely ordinary way that people speak and listen, write and read.
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Even the exception to the series-qualifier principle is intuitive, emphasizing both its common-sensical basis and its customary usage. When the nouns in a list are so disparate that the modifying clause does not make sense when applied to them all, then the last-antecedent rule takes over. Suppose8 your friend told you not that she wants to meet “an actor, director, or producer involved with Star Wars,” but instead that she hopes someday to meet “a President, Supreme Court Justice, or actor involved with Star Wars.” Presumably, you would know that she wants to meet a President or Justice even if that person has no connection to the famed film franchise. But9 so long as the modifying clause “is applicable as much to the first and other words as to the last,” this Court has stated, “the natural construction of the language demands that the clause be read as applicable to all.” In other words,10 the modifier then qualifies not just the last antecedent but the whole series.
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As the majority itself must acknowledge, this Court has repeatedly applied the series-qualifier rule in just that manner. In Paroline, for example,11 this Court considered a statute requiring possessors of child pornography to pay restitution to the individuals whose abuse is recorded in those materials. The law defines such a victim’s losses to include “medical services relating to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; attorneys’ fees, as well as other costs incurred; and any other losses suffered by the victim as a proximate result of the offense.” The victim bringing the lawsuit invoked the last-antecedent rule to argue that the modifier at the end of the provision—”as a proximate result of the offense”—pertained only to the last item in the preceding list, and not to any of the others. But12 the Court rejected that view13 : It recited the “canon[ ] of statutory construction,” derived from the “natural” use of language, that “[w]hen several words are followed by a clause” that can sensibly modify them all, it should be understood to do so. Thus,14 the Court read the proximate-cause requirement to cover each and every term in the list.
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United States v. Bass, to take just one other example,15 followed the same rule16. There, the Court confronted a statute making it a crime for a convicted felon to “receive[ ], possess[ ], or transport[ ] in commerce or affecting commerce . . . any firearm.” The Government contended that the modifying clause—”in commerce or affecting commerce”—applied only to “transport” and not to “receive” or “possess.” But17 the Court rebuffed that argument. “[T]he natural construction of the language,” the Court recognized, “suggests that the clause ‘in commerce or affecting commerce’ qualifies all three antecedents in the list.” Relying on longstanding precedents endorsing such a construction18, the Court explained: “Since ‘in commerce or affecting commerce’ undeniably applies to at least one antecedent, and since it makes sense with all three, the more plausible construction here is that it in fact applies to all three.”
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That analysis19 holds equally for § 2252(b)(2), the sentencing provision at issue here. The relevant language—”aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward”—contains a “single, integrated list” of parallel terms (i.e. , sex crimes) followed by a modifying clause. Given the close relation among the terms in the series, the modifier makes sense “as much to the first and other words as to the last.” In other words,20 the reference to a minor or ward applies as well to sexual abuse and aggravated sexual abuse as to abusive sexual conduct. (The case would be different if, for example,21 the statute established a mandatory minimum for any person previously convicted of “arson, receipt of stolen property, or abusive sexual conduct involving a minor or ward.”) So22 interpreting the modifier “as applicable to all” the preceding terms is what “the natural construction of the language” requires.
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The majority responds to all this by claiming that the “inelegant phrasing” of § 2252(b)(2) renders it somehow exempt from a grammatical rule reflecting “how people ordinarily” use the English language. But to begin with,23 the majority is wrong to suggest that the series-qualifier canon is only about “colloquial” or “conversational” English. In fact,24 it applies to both speech and writing, in both their informal and their formal varieties. Here is a way to test my point: Pick up a journal, or a book, or for that matter a Supreme Court opinion—most of which keep “everyday” colloquialisms at a far distance. You’ll come across many sentences having the structure of the statutory provision at issue here: a few nouns followed by a modifying clause. And25 you’ll discover, again and yet again, that the clause modifies every noun in the series, not just the last—in other words,26 that even (especially?) in formal writing, the series-qualifier principle works. And the majority is wrong too in suggesting that the “odd repetition” in § 2252(b)(2)’s list of state predicates causes the series-qualifier principle to lose its force. The majority’s own made-up sentence proves that much. 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. But27 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 § 2252(b)(2) lists offenses—the modifying clause still refers to them all.
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The majority as well seeks refuge in the idea that applying the series-qualifier canon to §2252(b)(2) would violate the rule against superfluity. Says the majority: “Any conduct that would qualify as ‘aggravated sexual abuse . . . involving a minor or ward’ or ‘sexual abuse . . . involving a minor or ward’ would also qualify as ‘abusive sexual conduct involving a minor or ward.’ ” But28 that rejoinder doesn’t work. “[T]he canon against superfluity,” this Court has often stated, “assists only where a competing interpretation gives effect to every clause and word of a statute.” And29 the majority’s approach (as it admits) produces superfluity too—and in equal measure. Now30 (to rearrange the majority’s sentence) any conduct that would qualify as “abusive sexual conduct involving a minor or ward” or “aggravated sexual abuse” would also qualify as “sexual abuse.” In other words,31 on the majority’s reading as well, two listed crimes become subsets of a third, so that the three could have been written as one. And indeed,32 the majority’s superfluity has an especially odd quality, because it relates to the modifying clause itself: The majority, that is,33 makes the term “involving a minor or ward” wholly unnecessary. Remember the old adage about the pot and the kettle? That is why34 the rule against superfluity cannot excuse the majority from reading § 2252(b)(2)’s modifier, as ordinary usage demands, to pertain to all the terms in the preceding series
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