In Defense of Scalia’s Scorn

By Carson Holloway

Thursday, July 23, 2015

Justice Antonin Scalia is in trouble. Like the rowdy students in Animal House, he’s been called into the dean’s office — called in to face a dean who has decided that “somebody’s got to put his foot down” on Scalia’s unruly antics.

Writing in the Los Angeles Times, Erwin Chemerinsky, dean of the law school at the University of California, Irvine, takes Scalia to task, characterizing him as a bad influence on the younger generation of lawyers. He finds his students resorting to witty ridicule — or attempts at witty ridicule — in their professional writing, and for this he blames the popularity of Scalia’s polemical style, especially in dissent. In many cases, Scalia does not just disagree with his colleagues’ arguments, he derides them, using such expressions as “ludicrous,” “absurd,” “irrational,” and “preposterous.”

Moreover, Chemerinsky laments, Scalia is getting worse. His opinions this term were “especially nasty, sarcastic, and personal.” Dissenting in Obergefell v. Hodges, the same-sex marriage ruling, Scalia described the Court’s opinion as being couched in a tone “as pretentious as its content is egoistic” and as putting forward “showy profundities” that “are often profoundly incoherent.” Concurring in Glossip v. Gross — the capital-punishment case — Scalia scorned Justice Stephen Breyer’s dissenting opinion, which called for the Court to reconsider the constitutionality of the death penalty. Scalia slammed the opinion for its “nonsense” and “gobbled-gook.”

What are we to make of Chemerinsky’s complaints?

It is worth observing, to begin with, that if Scalia’s rhetoric is unjustified, it is a sign of a larger corruption of our legal culture for which Scalia alone cannot be blamed. To this extent, Chemerinsky’s rebuke is partisan, for singling out Scalia. If we hold that rhetoric such as Scalia’s is out of bounds, it is because we share Aristotle’s sense that a community that seeks to live under law intends law to act as reason divorced from passion. This is the whole point of governing through laws: Their judgment cannot be corrupted by feelings, as can happen in the case of rulers not governed by law.

If we insist on such a standard, however, we should apply it equally to all appeals to passion that corrupt the language of legal judgment. We should object, as Chemerinsky notably does not object, to the emotionally loaded language of the Court’s opinion in Obergefell — its references to gays having to leave “unspoken” the truth “of what was in their hearts,” and to their hope “not to be condemned to live in loneliness.” This is not to deny, of course, the genuine feelings of gays. It is only to observe that, in any case that comes before the Court, there will be litigants with feelings at stake. There can be no principled legal resolution to their disputes to the extent that the Court is moved by these feelings.

Nevertheless, although I am an admirer of Scalia — of both the substance of his legal thought and the style in which he expresses it — I must admit that I shared some of Chemerinsky’s unease as I read Scalia’s Obergefell dissent. After all, it is rather surprising — and somewhat painful — to find a dissenting justice telling you he would feel obliged to “hide his head in a bag” if he had written the opening sentence of the Court’s opinion. It’s hard to imagine John Marshall saying something like this. As I pondered the question further, however, it occurred to me that Justice Scalia’s bare-knuckled style might be justifiable in the right set of circumstances.

Whether Scalia’s ridicule is justifiable is a question of prudence. On the one hand, we cannot rule ridicule out absolutely, because some legal arguments are so ill founded as to be worthy of ridicule. On the other hand, such ridicule carries real costs that we cannot simply dismiss out of hand. Practiced by a justice of the Supreme Court, it tends to undermine popular respect for the Court as an institution. The question, then, is whether it can be fitting for a sitting justice of the Supreme Court to use a rhetoric of ridicule that undermines public respect for the Court’s judgments. When the queston is stated this way, the answer seems almost obvious: How, we ask, can it possibly be appropriate for a member of the Court to foster disrespect for the Court? On closer examination, however, we see that we cannot rule it absolutely out of bounds.

Americans are supposed to be a free, self-governing people. Accordingly, although public officials should not gratuitously undermine public respect for our governing institutions, neither can we say that those who administer those institutions ought never to be held up to ridicule, if they have behaved in a ridiculous or, worse, lawless manner. On the basis of what principle could such an absolute prohibition be sustained? We might hold that it is destabilizing and demoralizing for the people to learn that their rulers are capable of great folly. But to insist on that point is to deny, at least implicitly, the kind of equality on which the American project is staked: the belief that the citizens at large are capable of intelligently judging the conduct of public officials and that they can therefore be trusted with the knowledge that their governors have behaved ridiculously. They are not children whose confidence in their parents must not be disturbed, but a free people with the authority and capacity to disagree with and even discipline those in public office.

We must ask, then, whether Scalia has some serious justification for exposing the Supreme Court to this kind of public disrespect. He certainly thinks he has sufficient justification. Scalia is a famously pugnacious man, yet he does not ordinarily resort to ridicule in dealing with his fellow justices when he believes they have made an honest error in legal reasoning. He resorts to ridicule when he believes they have cast aside their duty to confine themselves to legal reasoning and have instead taken up the task of deciding important political questions on behalf of their fellow citizens — a task they are in no way authorized to perform. If we are to have genuine self-government under the Constitution, then the judges must seek to give effect to the text of the Constitution and not simply announce the outcomes that they find to be just and good. If they do the latter, it is a grave abuse, indeed. It makes a mockery of our claim — our boast to the world — to be a self-governing people under the rule of law.

Can the Court reasonably be accused of such abuses of its authority? The evidence of it is clear in the very cases that Chemerinsky cites in chiding Scalia for the intemperance of his dissents. In Obergefell, the Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment “set forth broad principles rather than specific requirements” and that the Court need not be confined by the nation’s legal history in determining their meaning. This is as much as to say that those key provisions can mean whatever a contemporary majority on the Court decides they should mean. This is an invitation to arbitrary government. It cannot be called the rule of law — unless just anything is to be pronounced the rule of law simply because it is announced by judges.

Justice Breyer’s position in Glossip is equally objectionable as a matter of constitutional interpretation and therefore equally worthy of Scalia’s spirited objections. Breyer calls on the Court to use the Eighth Amendment prohibition on cruel and unusual punishments to declare the death penalty unconstitutional in all circumstances. As Scalia observes, the Constitution explicitly authorizes capital punishment. The Due Process Clauses forbid government from depriving a person of “life” without due process of law, which is equivalent to a provision authorizing government to deprive a person of life with due process of law. The Fifth Amendment similarly speaks of “capital” crimes.

We must ask how a justice can claim to be interpreting the Constitution when he seeks to forbid a common punishment that the Constitution not only does not clearly proscribe but in fact explicitly contemplates. In asking ourselves that question — in confronting the fact that it is necessary to ask it at all — we can come to understand Justice Scalia’s exasperation. We can also come to understand that Scalia’s derision is not merely a way of venting his exasperation. It has a serious purpose. He is using the rhetorical tools at his disposal to warn the Court and the public about a serious danger to our country: a Supreme Court that fancies itself a lawmaking body and that, to that extent, believes itself authorized to rule the American people.

This is a danger so serious — that strikes so deeply against our political way of life — that public disrespect for the Court is a price worth paying in order to resist it. In fact, fostering such disrespect, exposing the Court to ridicule for the emptiness of its reasoning, is a legitimate tool with which to rally public resistance to such a danger in the hope of restraining it. The American colonists made fun of George III. This is part of what free people do when their freedom is threatened.