Justice Antonin Scalia is setting a terrible example for young lawyers. Ignore, for now, his jurisprudence, his famously strict originalism; it’s his tone that’s the problem.
I have taught argumentation for many years, first as an instructor to high school and college debaters, currently as a law professor. Throughout my career I have always cautioned students away from nastiness as a crutch for those who cannot win using reason or legal precedent. I have told them to stick to persuasion and to dissecting the opposition’s logical fallacies.
But lately my students have been turning in legal briefs laced with derision and ad hominem barbs. For this trend, I largely blame Scalia. My students read his work, find it amusing and imitate his truculent style.
Scalia has long relied on ridicule. In past years he has dismissed his colleagues’ decisions as “nothing short of ludicrous” and “beyond absurd,” “entirely irrational” and not “pass[ing] the most gullible scrutiny.” He has called them “preposterous” and “so unsupported in reason and so absurd in application [as] unlikely to survive.”
Scalia’s opinions this term, however, were especially nasty, sarcastic and personal.
Consider several examples. In his dissent in Obergefell vs. Hodges, which declared unconstitutional state laws prohibiting same-sex marriage, Scalia said that Justice Anthony M. Kennedy’s majority opinion was “as pretentious as its content is egotistic” and that its “showy profundities are often profoundly incoherent.”
In a footnote he wrote, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” He likened the majority opinion to “mystical aphorisms of the fortune cookie.”
Such mockery does not amount to a legal argument; it’s nothing more than an attack on the author’s writing technique. A litigator who compared an opponent’s brief to a fortune cookie likely would be, and should be, sanctioned by the court.
In Glossip vs. Gross, which upheld the three-drug protocol used in lethal injection, Justice Stephen G. Breyer urged the court to solicit arguments on the death penalty — specifically whether it’s a cruel and unusual punishment and thus in violation of the 8th Amendment.
Scalia wrote a scathing response. He referred to Breyer’s opinion as “gobbledy-gook” and said his argument was “nonsense.” He concluded by stating, “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”
What did Breyer do to deserve this treatment? He was hardly the first member of the Supreme Court to question the death penalty’s constitutionality. Fellow doubters include Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens.
I do not mean to suggest that Scalia is the first or only member of the court to use invective. Nor do I deny that some find such language entertaining or delightfully funny. But Scalia’s browbeating is childish, even vain; like a harshly negative book critic, he revels in his own turns of phrase. And his attitude, just like his legal theory, affects the profession as a whole.
Scalia’s spiteful recent dissents probably reflect frustration; after all, he was on the losing side of several major cases. Still, that’s no excuse for lashing out. Nor should either liberals or conservatives dismiss such behavior as just “Scalia being Scalia.”
If legal professionals ignore Scalia’s meanness or — worse — pass around his insults at cocktail parties like Wildean witticisms, they’ll encourage a new generation of peevish, callous scoffers.
Erwin Chemerinsky is dean of the UC Irvine School of Law.