In Defense of Scalia’s Style

Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.”  He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell.  It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point.   The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence.  What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.

If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially.  Ridicule in defense of the rule of law is no vice.

But beyond the specifics of his particular rhetorical sallies, it is rational for Scalia to be cutting. Scalia is not going to be heard sotto voce over the volume of our left-liberal legal culture.  And because of this culture he would be attacked, no matter how pleasantly he phrased his critiques.  In contrast,  if he were a leftist writing in similarly colorful, but harsh terms, there would be a whole cottage industry in the legal academy celebrating his edgy, “outsider’s voice.”

The style has gotten him hearing unlike that of any other justice on the right. It is hard to imagine a play being written about any other justice or a video showing how a less combative justice seeps into the consciousness of even liberal students.

Scalia has no choice but to appeal over the heads of the legal elite to the people themselves. They are most likely to his allies, because the legally untutored, as I have noted before, are natural originalists. That necessarily requires a talent for sound bites in our age of fast news cycles.

The justices whose jurisprudence is most enduring from John Marshall to Oliver Wendell Holmes to Robert Jackson are those with a powerful and distinctive style. Scalia’s rhetorical gifts guarantee that his mostly sound ideas will be remembered long after those of other justices are forgotten.

Reader Discussion

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on August 23, 2015 at 14:18:11 pm

I'd like to comment about your thoughts, "Scalia has no choice but to appeal over the heads of the legal elite to the people themselves. They are most likely to his allies, because the legal untutored, as I have noted before, are natural originalists." I'm focused on "legal elite" as prisoners and physics as originality.

Aristotle said something to the effect that a person who does not participate in civic justice from young adulthood until near death is not a citizen. By that definition, I have always been a misdirected originalist. I naturally sought justice yet strained against the tension of opinion, specifically “freedom of religion.” Scalia is in the same box, but at a much higher level. His understanding of opinion is so deep into the labyrinth of opinion he cannot lead fellow prisoners out of the cave of opinion. See http://faculty.washington.edu/smcohen/320/cave.htm .

Adam Smith would say in effect that Scalia needs propriety (thank you Russ Roberts for the book, How Adam Smith Can Change Your Life). But you are saying that within prisoners' propriety, Scalia cannot lead. However, Scalia is also bound by a people who behave with propriety.

The people have agreed that natural morality is dictated by their personal god. The minute I approach the subject of physics-based ethics, everyone retreats to propriety: "Phil, I don't understand what you are talking about, and that's final." I persevere, because I appreciate a master of original thought: Albert Einstein. Also, I persevere because I envision a culture of a civic people wherein every no-harm sub-culture may flourish.

In a 1941, warm speech for believers, Einstein said, in my paraphrase: civic morality is determined by physics-based ethics. Thanks to our friend Sam Harris, Einstein's speech may be read at www.samharris.org/blog/item/my-friend-einstein. In wonderfully warm language, Einstein gives only one example of physics-based ethics: civic people don't lie to each other so that they can trust each other's statements. I dub that a soft example, and one of its hard analogs is: a civic people don't run red lights so they can trust green ones. Einstein wrote that if we examine each civic issue with such precision, we can build a system which I dub "civic morality." Civic morality leaves to the individual any no-harm religious morality they'd like to pursue.

In a more controversial application, a woman's ovum and a man's sperm form a single cell that may gestate into a baby person. The baby person owns his/her heritage and would not contract to relinquish the heritage. Adult contracts that deny the person his or her heritage are civically immoral according to physics-based ethics. Physics-based ethics is far-reaching. For example, suppose 100,000 years ago the Supreme Court had authorized dabbling with our heritage: Mitochondrial DNA informs us that everyone alive is a descendent of one woman who lived more than 140,000 years ago. The descendants of that woman’s peers died off during evolution. (Religious morality has no standing in this civic issue.) A similar argument exists for a woman's decision to terminate a pregnancy (and again, religion has no standing).

The Supreme Court is out on the limb of Judeo-Christian constructs that were embraced by Aristotle before Christianity was constructed. They use "legislative prayer" to maintain a semblance of control. State-church control was the subject of Nicolo Machiavelli's The Prince, Chapter XI, 1513: state-church partnership can do anything they want and people with a personal god will neither rebel nor leave the country. This principle, known by James Madison and contemporaries, has been kept secret from the people for obvious reasons but is failing on its own evil. The Supreme Court, deep in opinion about opinion seems unaware: legislative prayer is for legislators and thus is none of the people’s business (Greece v Galloway).

The 1787 signers of the constitution for the USA created an imperfect document, which even with an erroneous subject created the opportunity for the achievable combination no-harm personal liberty and domestic goodwill. The totality of the constitution’s subject, "We the People of the United States," was endorsed by 100% of the signers but only 70% of the delegates to the convention. History has shown that even with this great starting document, the 30% who are dissident for whatever reason can steer civic morality astray. Therefore, the 70% living in 2015 must come out of the closet of propriety and make it known that they candidly collaborate using the guidance of the preamble and the civic determinant physics-based ethics.

Albert Einstein expressed many profound civic thoughts. However, to a fault, he exercised Adam-Smith propriety: he constructed statements that would be acceptable for the crowd he was in and peace in his quiet life. The transition from freedom of religion to freedom of thought requires a method for establishing civic morality, allowing religious moralities to flourish. A Civic People of the United States are advancing a promising theory and need your collaboration.

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Phil Beaver
on August 23, 2015 at 15:36:59 pm

Forget the tone of his opinions, does his gruff attitude in general hurt his cause by alienating potential allies on the Court?

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Richard S
on August 24, 2015 at 00:55:46 am

Ridicule in defense of the rule of law is no vice.

That’s clever! But perhaps not accurate. What is Scalia’s agenda?

1. Perhaps he (and McGinnis?) is just a gadfly, writing with a detached, academic perspective.

2. But some people see judges as something more: As a mechanism for resolving conflicts without undermining social cohesion. From this perspective, a judge’s duty is to try to come to the right answer – but his higher duty is to persuade the public of the legitimacy of the court’s answer, whatever that answer may be. If the public loses faith in the courts, it will resort to other means of conflict resolution – and those means may cause even worse results than an adverse court ruling.

3. Still other people, conscious of the perspective in paragraph 2 above, regard a judge’s duty as to promote democracy by pulling back the curtains on the machinations that are the judicial system. This inevitably involves undermining the legitimating mythology surrounding the court, and reminding the public that judges are as fallible as anyone else.

I see Scalia's venting as consistent with theories 1. and 3., but inconsistent w/ theory 2.

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on August 24, 2015 at 12:58:39 pm


#1 & #3 do apply.

Yet #2 may also apply. Is Scalia not pulling back the curtains also when he exposes what he believes to be Judicial determinations that are ill founded and are in fact leading to a loss of social cohesion by "coming to the right (political) answer" as opposed to the legally based reason.

Plus, he is funny!

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on August 26, 2015 at 08:58:04 am

[…] discussion about the use and abuse of rhetoric in Supreme Court opinions. (E.g., here, here, and here.) One especially salient charge is that the Court’s opinions in Casey, Lawrence, and […]

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Image of Autonomy Rhetoric in Supreme Court Opinions | Re’s Judicata
Autonomy Rhetoric in Supreme Court Opinions | Re’s Judicata

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