[EL] Scalia's rhetoric
Rick Hasen
rhasen at law.uci.edu
Fri Jun 26 12:21:52 PDT 2015
I strongly disagree. Look at Justices Thomas, Alito, and CJ Roberts who
were able to write very strong dissents in the Obergefell case without
using Scalia's rhetoric.
I note that none of the examples you use are of current Justices.
On 6/26/15 11:51 AM, John White wrote:
>
> Dissents are often couched in language harshly critical of the
> majority, its use of precedent and even its juristic competence. The
> following are just a few samples
>
> Douglas, J., dissenting in /Terry v. Ohio/,
>
> /I agree that petitioner was "seized" within the meaning of the Fourth
> Amendment. I also agree that frisking petitioner and his companions
> for guns was a "search." But it is a mystery how that "search" and
> that "seizure" can be constitutional by Fourth Amendment standards
> unless there was "probable cause"*^[n1]
> *^<https://www.law.cornell.edu/supremecourt/text/392/1#ZD-392_US_1fn2/1>to
> believe that (1) a crime had been committed or (2) a crime was in the
> process of being committed or (3) a crime was about to be committed./
>
> /. . ./
>
> /To give the police greater power than a magistrate is to take a long
> step down the totalitarian path. Perhaps such a step is desirable to
> cope with modern forms of lawlessness. But if it is taken, it should
> be the deliberate choice of the people through a constitutional amendment/
>
> Douglas, J., dissenting in /Miller v. California,/
>
> Today we leave open the way for California(footnote omitted) to send a
> man to prison for distributing brochures that advertise books and a
> movie under freshly written standards defining obscenity /which until
> today’s decision were never the part of any law/.
>
> Douglas, J., dissenting in /Clay v. Sun Insurnace/
>
> /Only prejudice/ /against diversity jurisdiction can explain /the
> avoidance of the simple constitutional question that is presented here
> and the remittance of the parties to state courts to begin the
> litigation anew.
>
> Blackmun, J. (while on the NJ bench) /State v. Tune/ 13 N.J. 203 (1953)**
>
> The majority discounts to the point of virtual rejection the evidence
> of the /complete lack of the conjured danger/ . . .
>
> /The holding of this case gives the majority's protestation that "In
> this State our courts are always mindful of the rights of the accused"
> a hollow ring/. The assurance seems doubly hollow in light of the
> emphasis upon formalism in this case while it has been our boast in
> all other causes that we have subordinated the procedural niceties to
> decisions on the merits.
>
> And finally, Holmes, J., dissenting in /Lochner///
>
> /I think that the word liberty in the Fourteenth Amendment is
> perverted/ when it is held to prevent the natural outcome of a
> dominant opinion, unless it can be said that a rational and fair man
> necessarily would admit that the statute proposed would infringe
> fundamental principles as they have been understood by the traditions
> of our people and our law.
>
> Justice Scalia is acerbic, no doubt. But, no more so than other
> Justices have been when they feel fundamental precepts are violated by
> the majority.
>
>
>
> *John J. White, Jr.*
>
> 425.822.9281 Ext. 7321
>
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> *From:*law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
> *Rick Hasen
> *Sent:* Friday, June 26, 2015 6:37 AM
> *To:* JBoppjr at aol.com; law-election at uci.edu
> *Subject:* Re: [EL] Scalia's rhetoric
>
> 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,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 <mailto: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>by*Rick 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 <mailto: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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