Nino Scalia Writes Too Loud (Update)
One rough measure of how any Supreme Court term is going is to track the decibel level of Justice Antonin Scalia’s dissenting opinions. In a case last week, the question was whether statements made to the police by a shooting victim as he lay bleeding to death in the parking lot of a Detroit gas station were properly used at trial to obtain a murder conviction of the man he named as the gunman.
That conclusion enraged Justice Scalia. Of course the police officers knew they were gathering evidence for potential use at trial, he objected, and to maintain otherwise was “so transparently false that professing to believe it demeans this institution.” With this decision, the Supreme Court “makes itself the obfuscator of last resort,” he complained. A “gross distortion of the facts,” “utter nonsense,” and “unprincipled” were a few of the other zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.
But what strategic sense could lead a justice to administer such a public thrashing to a junior colleague?
So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?
The question is obviously loaded. Intemperate? Bullying? She could just as easily have asked why other justices wrote tepid, obtuse opinions that left one as confused after reading as before.
Nino Scalia is loved/hated for his strong views, though to the criminal defense bar, as distinct from broader liberal-inclined groups, Nino has done more to strengthen constitutional protections in the courtroom than any justice since Rhenquist took the bench.
Regardless of how one feels about Nino's judicial philosophy and consistency, consider the efficacy of his words. In the majority, his writing is usually clear and straightforward, with notable exceptions like the orphan paragraph of Heller that screws the entire decision. It's in dissent, however, where he shines.
Greenhouse, not surprisingly, characterizes Scalia in evil terms, bully, intemperate, loud. She seeks to judge him, however, on the ineffectiveness of his tirades.
It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.
The suggestion is that Nino has scared away or offended the others with his attacks on their sanity and upbringing, thus proving that his dissents are worthless indulgences that have been both offensive and ineffective.
At Volokh Conspiracy, Orin Kerr offers a different take:
[T]he main test for Scalia’s dissents is not whether they worked with the current Justices, but whether they influence the law in the future. As a former professor, Scalia knows what he’s doing, I think. He knows how to write a dissent in a way that is likely to be excerpted at considerable length in a casebook, and he knows how to write in a way that is very entertaining for bored law students to read. By writing a sharp, even overheated dissent, Scalia may sometimes annoy his colleagues. But he also ensures that the issue in the case will be debated in law schools in significant part on his terms, which I think is a pretty significant accomplishment.
While agreeing with Orin, it seems too narrow and parochial an explanation, as if Nino's concerns are limited to the legal community and the rest of society doesn't count.
For about a decade, I road on the train every day with a friend who went to Xavier, a New York Catholic military high school with Nino. He too was a straight talker. He had opinions and he had no qualms about letting me know what they were. There was no doubt, no equivocation, no apologies. He came from an era, and upbringing, where there was no shame in speaking one's mind, even if it didn't assuage the listener's sensibilities.
Greenhouse's approach presumes the virtue of a softer, more accommodating approach. Whether one views it as the subtle language of scholars or the tepid tones of acquiescence, she clearly favors a softer, gentler approach, where one wouldn't be called a "bully" by one's detractors.
But consider Scalia's statement from a 2008 interview:
Plus, dissents are just good. Look back at Korematsu [the 1944 case in which the Supreme Court upheld an executive order excluding Americans of Japanese descent from areas deemed critical to national defense]. Isn’t it nice to know that Robert Jackson – at least someone on the Court – saw how horrible it was? A dissent keeps you honest. Sometimes after a dissent circulates, some of the points are so obviously incorrect that the majority will cut back some of its broad principles.
As Nino says, "a dissent keeps you honest." A dissent isn't meant to make the majority feel better about its decision. It's not the mere lack of a vote out of nine. It's about a disagreement of sufficient magnitude that the justice of the Supreme Court of the United States cannot speak with a unanimous voice. Consider, if you will, that this is the court that announces the most fundamental and final word on what the law means for all of us, and nine people can't always agree.
Is there an ulterior purpose to Nino's stinging dissents? Must there be some Machiavellian undercurrent to his writing? Is it written in plain, clear, often brutal, language so that it's comprehensible to law students, who would never grasp his point if it was presented in nuanced, dulcet tones?
Or is Antonin Scalia the sort of man who sees no point in his existence, no point in his writing, if not to say whatever it is he has to say as clearly, and yes, brutally, as possible?
The likelihood of his dissents changing minds on the Supreme Court may vary from case to case or in accordance with the strength of others' convictions. The likelihood may be slim, even minuscule. Does that mean Antonin Scalia shouldn't leave behind a record of what he really thinks, express his beliefs in language that is clear, unequivocal and certain? Is there virtue in being a wishy-washy wimp because you hurt no one's feelings along the way?
When future generations look back at today's Korematsu, will anyone know that you had the balls to call it horrible, or will the best that can be said about you be that you offended no one? My answer to Linda Greenhouse's question is that Nino writes stinging dissents because he must.
Update: At the Atlantic Wire, this post was picked up as part of their 75th birthday coverage of Scalia's legacy, and I'm described as a "conservative legal blogger." Who knew? That's what I get for saying something nice about Nino.