[EL] Scalia's rhetoric

Fri Jun 26 06:36:37 PDT 2015

You are right that this is not the best example of his 
vituperativeness.  So here's some others from my article:

Here is Dean Chemerinsky’s catalog of some of Justice Scalia’s more 
memorable statements:

    In dissenting opinions, Justice Scalia describes the majority’s
    approaches as “nothing short of ludicrous” and “beyond the absurd,”
    “entirely irrational,” and not “pass[ing] the most gullible
    scrutiny.” He has declared that a majority opinion is “nothing short
    of preposterous” and “has no foundation in American constitutional
    law, and barely pretends to.” He talks about how “one must grieve
    for the Constitution” because of a majority’s approach. He calls the
    approaches taken in majority opinions “preposterous,” and “so
    unsupported in reason and so absurd in application [as] unlikely to
    survive.” He speaks of how a majority opinion “vandaliz[es] . . .
    our people’s traditions.” In a recent dissent, Justice Scalia declared:
             Today’s tale . . . is so transparently false that
    professing to believe it demeans this institution. But reaching a
    patently incorrect conclusion on the facts is a relatively benign
    judicial mischief; it affects, after all, only the case at hand. In
    its vain attempt to make the incredible plausible, however – or
    perhaps as an intended second goal – today’s opinion distorts our
    Confrontation Clause jurisprudence and leaves it in a shambles.
    Instead of clarifying the law, the Court makes itself the obfuscator
    of last resort. 8

As Dean Chemerinsky notes, much of the sarcasm in Justice Scalia’s 
opinions is aimed at his colleagues and appears in dissenting opinions. 
Justice Scalia has called other Justices’ opinions or arguments which he 
has disagreed with “bizarre,” 9 “[g]rotesque,” 10 and “incoherent.” 11 
Of the 75 sarcastic opinions referenced in law journals, 42 appear in 
(at least partially) dissenting opinions and 15 appear in (at least 
partially) concurring opinions. Justice Scalia has remarked that “Seldom 
has an opinion of this Court rested so obviously upon nothing but the 
personal views of its Members.” 12 In a civil rights case, he ended his 
dissent by stating that “The irony is that these individuals – 
predominantly unknown, unaffluent, unorganized – suffer this injustice 
at the hands of a Court fond of thinking itself the champion of the 
politically impotent.”13 In a gender discrimination case, he wrote: 
“Today’s opinion is an inspiring demonstration of how thoroughly 
up-to-date and right-thinking we Justices are in matters pertaining to 
the sexes (or as the Court would have it, the genders), and how sternly 
we disapprove the male chauvinist attitudes of our predecessors. The 
price to be paid for this display – a modest price, surely – is that 
most of the opinion is quite irrelevant to the case at hand.”14

In an abortion rights case he declared: “The emptiness of the ‘reasoned 
judgment’ that produced Roe is displayed in plain view by the fact that, 
after more than 19 years of effort by some of the brightest (and most 
determined) legal minds in the country, after more than 10 cases 
upholding abortion rights in this Court, and after dozens upon dozens of 
amicus briefs submitted in these and other cases, the best the Court can 
do to explain how it is that the word ‘liberty’ must be thought to 
include the right to destroy human fetuses is to rattle off a collection 
of adjectives that simply decorate a value judgment and conceal a 
political choice.” 15 Finally, in a concurring opinion in a substantive 
due process case, Justice Scalia wrote: “Today’s opinion gives the lie 
to those cynics who claim that changes in this Court’s jurisprudence are 
attributable to changes in the Court’s membership. It proves that the 
changes are attributable to nothing but the passage of time (not much 
time, at that), plus application of the ancient maxim, ‘That was then, 
this is now.
On 6/26/15 5:48 AM, JBoppjr at aol.com wrote:
> Rick calls this statement of Scalia "vituperative(ness)":
> There, Scalia opened his dissent with: “Today, the Court issues a 
> sweeping holding that will have profound implications for the 
> constitutional ideal of one person, one vote, for the future of the 
> Voting Rights Act of 1965, and for the primacy of the State in 
> managing its own elections. If the Court’s destination seems 
> fantastical, just wait until you see the journey.”
> Vituperative is defined as 
> "Using,containing,ormarkedbyharshlycriticaloriratelanguage" or "bitter 
> and abusive."
> Scalia may not have justified this statement to Rick's satisfaction 
> but I see nothing "harshly critical," "bitter or abusive," or 
> particularly "irate" about this statement.
> I guess I could be colored by my own biases or maybe Rick is.  Jim
> In a message dated 6/25/2015 10:49:19 P.M. Eastern Daylight Time, 
> rhasen at law.uci.edu writes:
>
>
>         Exhausted by Scalia’s Rhetoric
>         <http://electionlawblog.org/?p=73787>
>
>     Posted onJune 25, 2015 7:42 pm
>     <http://electionlawblog.org/?p=73787>byRick Hasen
>     <http://electionlawblog.org/?author=3>
>
>     I read a lot of Justice Scalia opinions to writeThe Most Sarcastic
>     Justice
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2550923>, and
>     I have to say I really enjoyed reading those opinions—they were
>     pithy, smart, insightful and blunt. Much more fun than say,
>     reading a Breyer or Souter opinion with which I was much more
>     likely to agree substantively.
>
>     But something’s changed more recently.Mark Tushnet
>     <http://balkin.blogspot.com/2015/06/justice-scalia-as-stylist.html>puts
>     it like this: “contrary to the seemingly widespread view that
>     Justice Scalia is a splendid stylist, his snarkiness is getting
>     tired.”
>
>     The question is this: has Justice Scalia’s rhetoric gotten more
>     extreme, or is it just that it’s the same routine, over and over,
>     applied in new cases.  I think it is some of both.
>
>     The biggest problem is a kind of Chicken Little-ism. Every
>     majority opinion with which Scalia disagrees is dishonest, it
>     means the end of principled jurisprudence, it will lead to
>     horrible consequences.
>
>     I think of the earlier opinion this term in the /Alabama
>     Redistricting /case
>     <http://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf>.
>     There, Scalia opened his dissent with: “Today, the Court issues a
>     sweeping holding that will have profound implications for the
>     constitutional ideal of one person, one vote, for the future of
>     the Voting RightsAct of 1965, and for the primacy of the State in
>     managing its own elections. If the Court’s destination seems
>     fantastical, just wait until you see the journey.”
>
>     The opinion then went on to discuss standing and related issues,
>     but NEVER explained even why he thought the opinion would lead to
>     such dire consequences. We got the vituperativeness, but not the
>     follow through.
>
>     It’s as though he’s tired.  And it is making us tired of reading him.
>
>     Just wait till /Obergefell./
>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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