[EL] Scalia's rhetoric

Fri Jun 26 12:52:45 PDT 2015

Maybe I missed it, but I don't think anyone has commented on Scalia's description of the 9 members of the current court, and his point that they are not representative of the heartland.  He says there are no justices from the western states, and then adds a parenthetical, "California doesn't count."  I suppose if there were a liberal justice from Washington state, Scalia would have said, "Washington doesn't count."
 Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
      From: Rick Hasen <rhasen at law.uci.edu>
 To: John White <white at livengoodlaw.com>; "JBoppjr at aol.com" <JBoppjr at aol.com>; "law-election at uci.edu" <law-election at uci.edu> 
 Sent: Friday, June 26, 2015 12:21 PM
 Subject: Re: [EL] Scalia's rhetoric

  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] 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.  
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 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 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
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