[EL] Scalia's rhetoric

Fri Jun 26 08:52:53 PDT 2015

I wish Justice Kennedy's opinion had mentioned the Ninth Amendment.
 Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
      From: Rick Hasen <rhasen at law.uci.edu>
 To: JBoppjr at aol.com; law-election at uci.edu 
 Sent: Friday, June 26, 2015 8:18 AM
 Subject: Re: [EL] Scalia's rhetoric

  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, 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 writes: 

Exhausted by Scalia’s Rhetoric
  Posted on  June 25, 2015 7:42 pm by Rick Hasen   I read a lot of Justice Scalia opinions to write The Most Sarcastic Justice, 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 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. 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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