Justice Oliver Wendell Holmes' two-paragraph dissent in Lochner v. New York does not grapple with the question: what does the 14th Amendment enact?
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.