[EL] Scalia's rhetoric

Mon Jun 29 09:13:56 PDT 2015

Try Slate's Scalia Insult Generator
http://www.slate.com/articles/news_and_politics/low_concept/2015/06/justice_scalia_insult_generator_how_the_supreme_court_justice_would_mock.html

On Fri, Jun 26, 2015 at 9:36 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  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 <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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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