[EL] Scalia's rhetoric

Fri Jun 26 07:42:14 PDT 2015

I agree these are better examples but many of these are tied to the  
substance.  "Absurd" and "irrational," for instance. can just be an  accurate, if 
strong and direct, description of the nature of the argument he is  
responding to. One may not agree but it is not "abuse."

In any event, if the point is that these examples of strong language  can 
be counter productive, etc I agree.  And truly abuse language is  wrong.  Jim 
 Bopp

In a message dated 6/26/2015 9:36:46 A.M. Eastern Daylight Time,  
rhasen at law.uci.edu writes:

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_ (mailto: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, or marked by harshly 
critical or irate language"  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_ (mailto:rhasen at law.uci.edu)  writes:

_Exhausted by Scalia’s Rhetoric_ (http://electionlawblog.org/?p=73787) 

Posted  on _June 25, 2015 7:42  pm_ (http://electionlawblog.org/?p=73787)  
by _Rick Hasen_ (http://electionlawblog.org/?author=3) 

I  read a lot of Justice Scalia opinions to write _The 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_ (mailto:rhasen at law.uci.edu) 

http://www.law.uci.edu/faculty/full-time/hasen/

_http://electionlawblog.org_ (http://electionlawblog.org/) 

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