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the term “ testimonial ” undefined , he employed an evocative metaphor to identify the sort of evidence that the Confrontation Clause barred at trial . He wrote :
Whatever else the term covers , it applies at a minimum to prior testimony at a preliminary hearing , before a grand jury , or at a former trial , and to police interrogations . These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed . 41
“ Kinship ” evokes a degree of closeness that a more conventional and expected word such as “ relationship ” or “ similarity ” would likely not convey . Thus , Scalia ’ s use of the metaphor here facilitates the comprehension and retention of his message .
Justice Scalia also used rhetorical devices effectively in dissent . In National Treasury Employees Union v . Von Raab , the Court considered whether the United States Customs Service had violated the Fourth Amendment ’ s prohibition of unreasonable searches and seizures by requiring a urinalysis test of employees who sought a transfer or a promotion within the agency . 42 The Court majority upheld the testing of employees who were directly involved in drug interdiction or who were required to carry firearms , but not the testing of applicants for positions that required employees to handle classified materials . 43
In a dissent that Justice John Paul Stevens joined , Scalia summoned both antithesis and antimetabole to express his suspicion of the Customs Service ’ s rationale for the testing : its status as the Nation ’ s first line of defense against drug smuggling . Antimetabole features the repetition of words , in successive clauses , in reverse grammatical order . 44 He wrote : “ To paraphrase [ Winston ] Churchill , all this contains much that is obviously true , and much that is relevant ; unfortunately what is obviously true is not relevant , and what is relevant is not obviously true .” 45
Later , he used anaphora , the repetition of the same word or group of words at the beginnings of successive clauses , to encapsulate his objections to the federal government ’ s defense of its drug-testing rules . 46 He wrote :
What is absent in the Government ’ s justifications – notably absent , revealingly absent , and as far as I am concerned dispositively absent – is the recitation of even a single instance in which any of the speculated horribles actually occurred : an instance , that is , in which the cause of bribe-taking , or of poor aim , or of unsympathetic law enforcement , or of compromise of classified information , was drug use . 47
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The rhetorical techniques employed in the Von Raab dissent are more effective than they would have been if obscured by the vituperative language that marked some Scalia dissents . The Justice was at his best when he embraced rhetoric without recrimination .
Conclusion
Justice Elena Kagan has observed that her late colleague Antonin Scalia “ is going to go down as one of the most important , most historic figures on the [ Supreme ] Court .” 48 One reason for Scalia ’ s historic significance is his skill as a writer , which often revealed itself in the masterly use of rhetorical devices . He leaves an imperfect , but nonetheless rich , rhetorical legacy . ____________________ Brian Porto , Esq . is a Professor of Law at Vermont Law School , where he teaches legal writing , sports law , and election law . ____________________
1
See , e . g ., R . David Lat , “ How Justice Scalia ’ s Writing Style Affected American Jurisprudence ,” Above the Law , November 21 , 2016 , http :// abovethelaw . com / 2016 / 11 / how-justicescalias-writing-style-affected-american-jurisprudence / ( last visited May 29 , 2017 ); Kyle Peterson , “ How To Write Like Antonin Scalia ,” The Wall Street Journal , July 8 , 2016 , http :// www . wsj . com / articles / how-to-write-like-antonin-sc ….( last visited May 29 , 2017 ); Eder Peralta , “ 5 Opinions From Justice Scalia that Are Worth a Read ,” National Public Radio , February 13 , 2016 , http :// www . npr . org / sections / thetwoway / 2016 / 02 / 13 / 466696382 / 5-opinions-fromjustice-antonin-scalia-that-are-worth-a-read ( last visited May 29 , 2017 ).
2
JOAN BISKUPIC , AMERICAN ORIGINAL : THE LIFE AND TIMES OF JUSTICE ANTONIN SCAL- IA 27 ( 2009 ).
3
Id . at 91 .
4
Id . at 93 .
5
RALPH A . ROSSUM , ANTONIN SCALIA ’ S JURISPRUDENCE : TEXT AND TRADITION 2 ( 2006 ).
6
BISKUPIC , AMERICAN ORIGINAL at 352 .
7
Texas v . Johnson , 491 U . S . 397 ( 1989 ); County of Riverside v . McLaughlin , 500 U . S . 144 ( 1991 ); National Treasury Employees Union v . Von Raab , 489 U . S . 656 ( 1989 ).
8
Crawford v . Washington , 541 U . S . 36 ( 2004 ); Melendez-Diaz v . Massachusetts , 129 S . Ct . 2527 ( 2009 ).
9
George Kannar , The Constitutional Catechism of Antonin Scalia , 99 Yale L . J . 1297 , 1342 ( 1990 ).
10
DAVID A . SCHULTZ AND CHRISTOPHER E . SMITH , THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA 205 ( 1996 ).
11
Charles Fried , Manners Makyth Man : The Prose Style of Justice Scalia , 16 Harvard Journal of Law & Public Policy 529 , 529 ( 1993 ).
12
Erwin Chemerinsky , The Jurisprudence of Justice Scalia : A Critical Appraisal , 22 Hawaii Law Review 385 , 386 ( 2000 ).
13
Yury Kapgan , Of Golf and Ghouls : The Prose Style of Antonin Scalia , 9 Legal Writing : The Journal of the Legal Writing Institute 71 , 101 ( 2003 ).
14
RICHARD POSNER , CARDOZO : A STUDY IN REPUTATION 136 ( 1990 ).
15
Kapgan , Of Golf and Ghouls , pp . 99-100 .
16
Lee v . Weisman , 505 U . S . 577 , 637 ( 1992 ).
17
Morgan v . Illinois , 504 U . S . 719 , 748 ( 1992 ).
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18
Austin v . Michigan Chamber of Commerce , 494 U . S . 652 , 684 ( 1990 ).
19
Webster v . Reproductive Health Services , 492 U . S . 490 , 535 ( 1989 ).
20
Kapgan , note 13 , at 74 .
21
Id . at 99-100 .
22
515 U . S . 646 ( 1995 ).
23
Id . at 657 .
24
EDWARD P . J . CORBETT AND ROBERT J . CONNORS , CLASSICAL RHETORIC FOR THE MODERN STUDENT 381 ( 4 th ed . 1999 ).
25
Id . at 396 .
26
Vernonia School District 47J v . Acton , 515 U . S .
30
Id .
31
Id .
32
Vernonia School District 47J v . Acton , 515 U . S .
at 664 .
33
541 U . S . 36 ( 2004 ).
34
Id . at 40 .
35
448 U . S . 56 ( 1980 ).
36
Crawford v . Washington , 541 U . S . at 59 .
37
Id . at 62 .
38
CORBETT AND CONNORS , CLASSICAL RHETORIC FOR THE MODERN STUDENT at 382 .
39
Id . at 403 .
40
Crawford v . Washington , 541 U . S . at 63 .
41
Id . at 68 .
42
489 U . S . 656 , 660 ( 1989 ).
43
Id . at 664 .
44
CORBETT AND CONNORS , CLASSICAL RHETORIC FOR THE MODERN STUDENT at 394 .
45
National Treasury Employees Union v . Von Raab , 489 U . S . at 682 .
46
CORBETT AND CONNORS , CLASSICAL RHETORIC FOR THE MODERN STUDENT at 390 .
47
National Treasury Employees Union v . Von Raab , 489 U . S . at 683 .
48
R . David Lat , How Justice Scalia ’ s Writing Style Affected American Jurisprudence , November 21 , 2016 , http :// abovethelaw . com / 2016 / 11 / how-justice-scalias-writing-style-affected-american-jurisprudence / ( last visited May 29 , 2017 ).
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