[EL] Scalia's rhetoric
Rick Hasen
rhasen at law.uci.edu
Fri Jun 26 08:18:15 PDT 2015
Here's Justice Scalia today in a footnote in the ssm decision:
22 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
allw ithin 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. 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.
On 6/26/15 7:42 AM, JBoppjr at aol.com wrote:
> 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 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
>
--
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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