2. The Justice as Rhetorician
Justice Scalia used rhetorical devices to
good effect in his majority opinion in Verno-
nia School District 47 J v. Acton, which con-
sidered the constitutionality of a random
drug-testing program for high school ath-
letes. 22 Scalia addressed this issue with an
aphorism and with parallelism, observing
that”[s]chool sports are not for the bashful”
and that “[t]hey require ‘suiting up’ before
each practice or event, and showering and
changing afterwards.” 23 An aphorism is a
short, pithy phrase that makes a true state-
ment. It is not included among the rhetori-
cal devices recognized by classical rhetori-
cians, but it serves the same end as they
do: to highlight key points in a concise, viv-
id way. Thus, “[s]chool sports are not for
the bashful” is an aphorism. Parallelism is a
classical rhetorical technique characterized
by similarity of structure in a pair or series
of related words, phrases, or clauses. 24 The
references to “suiting up, showering, and
changing” illustrate parallelism.
Later in the opinion, Justice Scalia used
a simile to reinforce his point that stu-
dents who try out for high school sports
teams have a reduced expectation of pri-
vacy. A simile is an explicit comparison
between two things of unlike nature that
yet have something in common. 25 It differs
from its cousin, the metaphor, by includ-
ing the word “like” or “as,” thereby mak-
ing its comparison explicit. “Somewhat
like adults who choose to participate in a
‘closely regulated industry,’” Scalia wrote,
“students who voluntarily participate in
school athletics have reason to expect in-
trusions upon normal rights and privileges,
including privacy.” 26
www.vtbar.org
To the respondent’s claim that drug test-
ing should be based exclusively on indi-
vidual suspicion, Justice Scalia responded
with a metaphor and antithesis. A meta-
phor, as the previous discussion suggests,
is an implied comparison between two
things of unlike nature that yet have some-
thing in common. 27 It omits comparative
words such as “like” or “as,” thereby mak-
ing its comparison implicit. Antithesis, on
the other hand, is the juxtaposition of con-
trasting ideas, often in parallel structure. 28
Rejecting the need for individual suspicion
in this case, Scalia wrote: “It may be im-
practicable, for one thing, simply because
the parents who are willing to accept ran-
dom drug testing for athletes are not will-
ing to accept accusatory drug testing for all
students, which transforms the process into
a badge of shame.” 29 In that sentence, the
“badge of shame” metaphor follows the
juxtaposition of conflicting viewpoints that
is antithesis.
Finally, in concluding his list of reasons
for why drug testing based on individual
suspicion would be unworkable regarding
high school athletes, Scalia employed the
familia r, but often difficult-to-distinguish
rhetorical devices known as alliteration
and assonance. Alliteration is the repeti-
tion of initial or medial consonants in two
or more adjacent words, as in an old adver-
tisement for the soft drink Sprite that de-
scribed it as “tart, tingling, and even tick-
lish.” 30 Assonance, alliteration’s cousin,
is the repetition of similar vowel sounds,
preceded and followed by different con-
sonants, in the stressed syllables of adja-
cent words. 31 A sentence stating that “the
omnipresent officer observed odd behav-
ior on Tuesday night” illustrates assonance.
Justice Scalia stated his final objection to
drug testing based on individual suspicion
as follows: “And not least of all, it adds to
the ever-expanding diversionary duties of
schoolteachers the new function of spot-
ting and bringing to account drug abuse,
a task for which they are ill-prepared, and
which is not readily compatible with their
vocation.” 32 “Ever-expanding diversionary
duties” exhibits assonance in the first two
words of the phrase and alliteration in the
last two. If that is not enough to give the
sentence a pleasant rhythm, the use of par-
allelism later on (spotting and bringing to
account) does the trick.
Antonin Scalia also made good use of
rhetorical devices in his majority opinion
in Crawford v. Washington. 33 The Court
considered whether the defendant’s Sixth
Amendment Confrontation Clause rights
were violated when the prosecution played
at trial his wife’s tape-recorded statement
to police that described how the defen-
dant had stabbed a man who had alleged-
ly attempted to rape her. The defendant
could not cross-examine his wife because
THE VERMONT BAR JOURNAL • SUMMER 2017
of the state’s marital privilege, which gen-
erally barred one from testifying against his
or her spouse without the consent of the
spouse who is the subject of the testimo-
ny. 34 But the trial court nevertheless admit-
ted the tape-recorded statement the de-
fendant’s wife had given to police officers.
It relied on the rule of Ohio v. Roberts that
the Confrontation Clause allows admission
of the statement of an unavailable witness
against a defendant if the statement bears
“adequate indicia of reliability,” meaning
that it falls within a “firmly rooted hearsay
exception” or has “particularized guaran-
tees of trustworthiness.” 35 In this case, the
trial court held, the particularized guaran-
tee of trustworthiness was that the wife’s
statement corroborated the defendant’s
claim of self-defense.
As an originalist, Scalia read the Con-
frontation Clause to allow admission of tes-
timonial statements by witnesses absent
from trial only when: (1) the witness is un-
available and (2) the defendant has had a
prior opportunity to cross-examine that
witness. 36 Because neither condition was
met in Crawford, he concluded that the
trial court had violated the Confrontation
Clause in admitting the wife’s testimony.
He used a simile that highlighted both his
conclusion and the originalism on which it
was based. He wrote:
reasoning “cannot be taken seriously” and
“preserves a chaos that is evident to any-
one who can read and count.” 19
That sort of language is indefensible,
but its sting is somewhat mitigated by its
confinement, by and large, to dissents.
As Professor Kapgan has noted, Scalia’s
“sharp wit, biting critiques, elaborate use
of metaphors, and preference for bright-
line rules f[ound] refuge in dissent.” 20 And
he took refuge in the den of dissent often.
The study cited earlier, conducted between
1986 and 2003, found that Scalia wrote
more dissents that any justice except John
Paul Stevens and fewer majority opinions
than anyone other than Anthony Kenne-
dy, whose ascension to the Court followed
Scalia’s by two years. 21
But to shine the spotlight only on Jus-
tice Scalia’s vitriolic dissents is to obscure
his well-crafted majority opinions (and dis-
sents) that not only avoid the caustic put-
downs alluded to above, but also use the
tools of classical rhetoric wisely and well. A
few examples follow.
Dispensing with confrontation be-
cause testimony is obviously reliable
is akin to dispensing with jury trial be-
cause a defendant is obviously guilty.
This is not what the Sixth Amendment
prescribes. 37
The passage is effective not only because
of the simile that equates the right to con-
frontation with the right to a jury trial, but
also because of the parallelism between
the phrases “dispensing with confrontation
because testimony is obviously reliable”
and “dispensing with jury trial because
a defendant is obviously guilty.” Indeed,
the sentence goes beyond parallel struc-
ture to isocolon, which occurs when two
or more parallel elements are of similar or
equal length, as are the two in the quota-
tion above. 38 The use of both a simile and
isocolon enhances the persuasive power of
Scalia’s point.
Later in his majority opinion, Scalia used
another rhetorical device, hyperbole, to
criticize the Roberts test on which the tri-
al court had relied. Hyperbole is the use
of exaggerated terms for the purpose of
emphasis or heightened effect. 39 “The un-
pardonable vice of the Roberts test,” he
wrote, “is not its unpredictability, but its
demonstrated capacity to admit core tes-
timonial statements that the Confronta-
tion Clause plainly meant to exclude.” 40
[Emphasis added]. Finally, although he left
29