by Brian Porto , Esq .
WRITE ON The Rhetorical Legacy of Antonin Scalia
Introduction
When Justice Antonin Scalia died , early in 2016 , commentaries about his contributions to American law poured forth from journalists and scholars , usually focused on his passionate and persistent advocacy of “ originalist ” jurisprudence and his skill as a writer . 1 The latter is the primary focus of this article . To properly assess Scalia the writer , though , one must first recall Scalia the legal thinker .
Antonin Scalia as Legal Thinker
Justice Scalia ’ s judicial philosophy --originalism-- holds that judges should interpret the Constitution according to the meaning given to its words at the time of its adoption . For Scalia , this philosophy had its roots in the legal thinking of constitutional scholar Herbert Wechsler , who was a visiting professor at Harvard Law School during Scalia ’ s student years there . Professor Wechsler advocated judging based on “ neutral principles .” He argued that “ value choices ” should be the exclusive province of the elected branches of government . For example , although he opposed racial segregation in public schools as a policy , Wechsler nonetheless criticized the Supreme Court ’ s decision in Brown v . Board of Education , which held that racially segregated schools were unconstitutional because of segregation ’ s adverse psychological effects on African American students . 2 Wechsler ’ s influence on the young Scalia was evident many years after the latter ’ s graduation from law school when , as a judge on the D . C . Circuit and later a Supreme Court justice , he read individual rights narrowly , placed high hurdles before consumers and other groups that sought access to the federal courts , opposed race- and sex-based policies of affirmative action , and generally held that society ’ s most vexing problems should be left to the elected branches of government for resolution . 3
On the bench , Scalia was also critical of what he saw as his colleagues ’ tendency to look beyond the text of legislation to determine its reach . He vehemently opposed judicial reliance on “ legislative history ” or , to use biographer Joan Biskupic ’ s term , “ artifacts of the legislative process ,” instead of the text , to discern a statute ’ s proper breadth . 4 This view coincided with Scalia ’ s general position that judges should leave major social problems to the elected branches of government , but it also reflected the constant companion to his originalism : “ textualism .” Indeed , his originalism was rooted in textualism , which emphasized the words of and the tradition associated with the statute or constitutional provision being interpreted . For the textualist , a judge is duty-bound to apply the language of a statute or the Constitution when it is clear and , when it is not , to apply the meaning the words had to the society that adopted them . 5
Justice Scalia ’ s originalism and textualism usually led him to support conservative outcomes in individual cases . Those guiding principles yielded no “ abortion rights ” in the Constitution , but instead , unearthed “ strict prohibitions on affirmative action and various rules for regulating campaign finance .” 6 Nevertheless , he supported the right to burn the American flag , objected to the detention of arrestees for fortyeight hours prior to a probable cause hearing , and opposed the random drug testing of Customs Service employees . 7 He interpreted the Sixth Amendment ’ s Confrontation Clause to bar admission at trial of an unavailable witnesss ’ s statement against the defendant and to require at trial the inperson testimony of forensic analysts who had conducted scientific tests on physical evidence . 8 For Antonin Scalia , then , text overrode precedent , and precedent overrode policy . 9 As a result , he stands out among recent Supreme Court justices for his efforts to shape American law according to a particular jurisprudential framework . 10
Scalia the Writer
1 . Controversial Prose
Justice Scalia also stands out as a writer , and the remainder of this article will focus on his imaginative use of rhetorical devices to produce powerful and memorable opinions . His writing , like his jurisprudence , had devoted friends and dismissive foes . One friend of Scalia ’ s prose , Professor Charles Fried of Harvard Law School , observed , “ By writing simply , clearly , directly , and forcefully , he makes a moral and political point about judging , about the law , and about the kind of institution the Supreme Court should be .” 11 A foe , Erwin Chemerinsky , now Dean of the University of California Irvine Law School , chided Scalia for opinions spiked with sarcasm . Chemerinsky wrote :
No justice in Supreme Court history has consistently written with the sarcasm of Justice Scalia . No doubt , this makes his opinions among the most entertaining to read . He has a great flair for language and does not mince words when he disagrees with a position . But I think that this sends exactly the wrong message to law students and attorneys about what type of discourse is appropriate in a formal legal setting and how it is acceptable to speak to one another . 12
Both assessments are accurate . On the one hand , Scalia ’ s writing was vibrant and forceful . In this regard , Professor Yury Kapgan has written :
[ Scalia ’ s ] tone is personal and conversational rather than detached and formalistic , certain rather than tentative , rhythmic rather than stilted . He speaks with his own tongue , employing metaphors that help connect him to his audience . 13
The Scalia prose style also calls to mind a quotation from Judge Richard Posner of the Seventh Circuit about “ vivid ” judicial writing , as exemplified by Oliver Wendell Holmes , Jr ., Benjamin Cardozo , and Learned Hand . Judge Posner wrote , “ The power of vivid statement lifts an opinion by a Cardozo , a Holmes , a Learned Hand out of the swarm of humdrum , often numbing , judicial opinions , rivets attention , crystallizes relevant concerns and considerations , provokes thought .” 14 The same can be said for Scalia ’ s opinions , which perhaps was why an examination conducted between November 4 , 1986 and June 30 , 2003 , found that his name was mentioned more often in law reviews and major newspapers than that of any other justice except Sandra Day O ’ Connor . 15 Presumably , O ’ Connor ’ s status as the Court ’ s ideological fulcrum occasioned the frequent mention of her name in print .
On the other hand , the foes of Scalia ’ s prose have a point . He was prone to cross the rhetorical Rubicon between professional critique and personal attack . In several dissents , for example , he described the majority ’ s reasoning as “ nothing short of ludicrous ” and “ beyond absurd ,” 16 as “ not passing the most gullible scrutiny ,” 17 and as “ entirely irrational .” 18 Even in a concurrence , he wrote that Justice O ’ Connor ’ s
28 THE VERMONT BAR JOURNAL • SUMMER 2017 www . vtbar . org