British literary critic I.A. Richards once defined “tone” as a literary speaker’s attitude toward his or her listener. Borrowing that definition, this article posits that the genre of the majority judicial opinion leaves more room for tonal variation than many scholars have previously theorized. The article first elaborates on the concept of “tone,” distinguishing it from “voice” and “style.” It then reviews the existing scholarship on tone in legal writing and describes the specific dynamics of tone in majority opinions. At that point, the article closely analyzes tonal variation in two 2020 Supreme Court opinions: the majority opinion in Chiafalo v. Washington, the so-called “faithless electors” case, authored by Justice Elena Kagan, and the majority opinion in Bostock v. Clayton County, the Title VII case involving gay and transgender persons, authored by Justice Neil Gorsuch. This analysis demonstrates that tone can vary widely not only from author to author, but also from passage to passage within a single author’s majority opinion. The article concludes by noting that readers who pay attention to tonal variations in opinions will derive a deeper understanding of those opinions, and that attorneys in particular can benefit from studying tones in opinions because many of the devices that create forceful and persuasive tones in judicial opinions can be adopted for use in legal briefs.
Lisa Eichhorn, Declaring, Exploring, Instructing, and (Wait for It) Joking: Tonal Variation in Majority Opinions, 18 LEGAL COMM. & RHETORIC: JAWLD 1 (2021).