I’ve spent two decades mining Supreme Court opinions for writing techniques that can inspire advocates, too. The best examples rarely feature the snarky or witty lines made for social media. Instead, they model how to navigate the toughest problems in legal reasoning: how to make the complex come to life, how to fight line-drawing, how to narrow the issue and still win everything, how to answer a demand for more protection by counting the protections already in place, and how to concede unfavorable facts. As advocates prepare for the coming term, they can look to the current one for a working model of persuasion.
The 2025-26 term has been long on both contentious issues and stellar writing. One passage below hails from a unanimous opinion; others come from sharply divided decisions and unusual coalitions. These five techniques work as well in a motion to dismiss as they do in a Supreme Court opinion.
1. Character sketch (Justice Sonia Sotomayor)
When you parse statutory schemes, contract provisions, patent claims, or a line of related cases, your challenge is to help an uninitiated reader relate to the abstract and the abstruse. Take the dense statutory scheme in Bowe v. United States. The court had to grapple with the government’s argument that one statutory subsection’s cross-reference to a neighboring provision would sweep in yet another subparagraph, Section 2244(b)(3)(E), and thus bar Supreme Court review.
To save us from that morass, Sotomayor turns the various provisions into actors, with each assigned a role (emphasis added):
Section 2244(b)(3)(A) identifies that the filing must be certified in the court of appeals before an individual can proceed in the district court. Section 2244(b)(3)(B) requires that a three-judge panel make the certification decision. Section 2244(b)(3)(C) tells the panel that the filing must make a prima facie showing that it satisfies the relevant gatekeeping requirements. Finally, §2244(b)(3)(D) instructs the panel to decide whether to certify a filing within 30 days of receiving the request. These provisions all describe the procedures that a panel must follow in certifying a second or successive filing, and are therefore incorporated by §2255(h)’s cross-reference.
Subparagraph (E) – the disputed certiorari bar – is, on her telling, the odd one out: it governs the Supreme Court’s review, not the panel’s certification. To the government’s response that all five subparagraphs travel as a package, she answers: “If Congress had intended for all five to travel together, however, it did not say so explicitly. That would have been easy to do.”
Practical tip: Before seeking refuge in canons or other abstractions, assign each element of the provision or scheme an actor and a role. Show the reader who does what before you argue about what it all means.
2. Hold the line (Justice Elena Kagan)
When your opponent draws a line in the law, calling it “arbitrary” is far less effective than inviting the reader to stand on that line and look around. In Chatrie v. United States, the court held that police conducted a Fourth Amendment search when they used a “geofence warrant” to access Okello Chatrie’s Google location history. Kagan wrote for a bare majority of five, with Justice Neil Gorsuch concurring only in the judgment. Carpenter v. United States, an earlier case, had held that accessing seven days of cell-site records was a search; the government argued that two hours of cell-phone location data fell outside the amendment altogether.
In rejecting that argument, Kagan first calls the government’s proposed line a “Constitution-free zone.” Then she stages the surroundings. Even short-term monitoring, Kagan argues, quoting Sotomayor's concurrence in a separate Fourth Amendment case, can reveal visits to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, [or] the by-the-hour motel.” Then she subjects that line to precedents already familiar to the reader: thermal imaging was a search even though it unearthed no intimate details, and Katz v. United States, the court’s seminal wiretap case, involved just 18 minutes of recordings.
Her point is not that two hours is inherently long. It is that a constitutional rule does not gain force merely because a party attaches a number to it.
Practical tip: If another party draws a line in the sand, don’t just attack the threshold. Take the reader by the hand and walk through concrete consequences until the cost of the line is impossible to ignore.
3. The incredible shrinking issue (Gorsuch and Justice Amy Coney Barrett)
It’s an advocacy axiom that you should make the court’s task seem as small and simple as possible. Justices seeking votes face a similar challenge. In United States v. Hemani – which held that prosecuting a man under 18 U.S.C. §922(g)(3) for keeping a gun at home while regularly using marijuana was inconsistent with the Second Amendment – Gorsuch shrinks the issue point by point (emphasis added):
In many respects, this case is a narrow one. We do not address efforts to ban addicts, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week.
Only then does Gorsuch frame the government’s position, stripped of any remnants of addiction, intoxication, or danger.
“Less is more” is wise advice for framing issues, not just for editing prose. Barrett similarly shrinks the plaintiffs’ question before the court in Watson v. Republican National Committee. There, writing for herself, the chief justice, and the three Democratic appointees, she held that the federal election-day statutes do not preempt Mississippi’s law counting absentee ballots postmarked by election day but received up to five days later. Like Gorsuch, she clears away the brush before framing the issue (emphasis added):
The question before us is a narrow one about timing. Plaintiffs do not challenge the manner in which Mississippi carries out federal elections. They do not, for example, challenge the general practice of absentee voting. Nor do they challenge the use of the Postal Service or a common carrier to transmit ballots.
Although the election-day statutes refer to a particular “day” for the election, plaintiffs do not contend that everything must occur on that day. For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election day.
Finally, this is not a case about the Constitution. We do not consider the scope of Congress’s authority to regulate federal elections. The sole question before us is whether counting ballots postmarked by election day, but received up to five days later, violates the federal election-day statutes.
The two passages look alike, but they address different audiences. Gorsuch disclaims what the court is not deciding – reassuring wavering colleagues and future litigants that the holding is contained. Barrett disclaims what the plaintiffs are not arguing – showing a reader sizing up the stakes just how little turns on the answer. One shrinks the court’s task; the other shrinks the opponent’s case.
Practical tip: For advocates seeking relief, “Defendants do not contend,” “The court need not find . . .” or “The court need not address” are three of the happiest sentence openers.
4. Not all or nothing (Justice Brett Kavanaugh)
In National Republican Senatorial Committee v. Federal Election Commission, the court held – overruling its 2001 decision in FEC v. Colorado Republican Federal Campaign Committee – that federal limits on what a political party may spend in coordination with its own candidates violate the First Amendment. The statute’s court-appointed defender, Roman Martinez, joined by the Democratic Party committees that intervened, argued that the limits were necessary to stop donors from routing money around caps on direct contributions. Kavanaugh answers by enumerating what already stands in the way (emphasis added):
The base limits on contributions to candidates serve as an initial prophylaxis. . . . The earmarking rules constitute a second prophylaxis. The disclosure requirements supply a third prophylaxis. So prophylaxis upon prophylaxis upon prophylaxis already serve to prevent quid pro quo corruption or its appearance.
The political-party coordinated-expenditure limits at issue here would operate as a fourth line of defense.
Such a list is far more compelling than an adjective like “unnecessary” or “superfluous.”
Practical tip: When your opponent asks for more than you believe is necessary, switch the frame from a lack of right to a lack of need – then count off, one by one, the safeguards already there.
5. Concede for the win (Justice Ketanji Brown Jackson)
Most disputes have unfavorable facts on both sides. But when your opponent weaves several of your worst facts into a single taut passage, the reader may be quick to infer a pattern that hurts your cause.
In Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., Amarin used that strategy to allege induced patent infringement. Hikma’s generic drug carried a “skinny label” carving out a patented use, but Amarin pointed to other features of the label, along with Hikma’s press releases and website, as evidence that Hikma was nevertheless encouraging doctors to prescribe the drug for that use.
Writing for a unanimous court, Jackson first identifies the inference that actually matters:
The central question is whether Amarin plausibly alleged that Hikma actively encouraged infringing uses, not merely whether doctors could plausibly read the alleged statements as instructions to infringe.
That distinction lets her dismantle the narrative fact by fact. Consider one of Amarin’s supposedly incriminating details (emphasis added):
It is true, as Amarin complains, that Hikma’s label omitted the CV Limitation of Use and retained information about a clinical study involving patients taking statins, just as Amarin’s label did. But that is because, by statute, Hikma’s label must be identical to Amarin’s except for the carved-out use, barring specified circumstances not applicable here.
Amarin also finds fault in Hikma’s statements describing its product as “‘generic Vascepa’” or the “‘generic equivalent’ of Vascepa” in the prelaunch press releases. But as we have explained, it is “normal industry practice” to “truthfully describe” a generic drug as “‘equivalent’” to the brand-name comparator.
Notice what Jackson does not do. She does not deny the fact. And she does not simply insist that the overall allegations are “insufficient.” She separates what happened from what Amarin believes it means.
The technique matters because fact-laden arguments often try to force the reader into a single inference. “The Defendant did X” morphs into “The Defendant did X because it intended Y.” Jackson’s technique urges the reader to pause between those steps.
Practical tip: When the other side piles on adverse facts, break them into pieces and draw a sharp line between what the fact describes and what it means or doesn’t mean.
Try these at home
None of these techniques is a rhetorical flourish. Each is an act of structure or framing: cast each provision as an actor, pressure-test the line, shrink the issue, count the safeguards, separate the fact from the inference. These scaffolds reduce the reader’s cognitive load – and lower the cost of ruling for your side.
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