Justice Scalia and Nonviolent Communication

by Sherry F. Colb

In my Verdict column for this week, I discuss the recent case of Maryland v. King, in which the Supreme Court upheld a Maryland law authorizing the collection of DNA samples from people arrested and booked for violent (and other serious) crimes.  In a two-part earlier column, here and here, I discussed the merits of the case in more detail, but my column more closely examines Justice Scalia's dissenting opinion and the central role that governmental intentions play in that dissent.

In this post, I want to focus more generally on Justice Scalia's approach to disagreements with his colleagues.  First, I should note that in person, Justice Scalia is a very friendly, charismatic, and charming individual.  I had the privilege of sharing a lunch with the Justice (and my co-clerks) about twenty years ago, and the three hours flew by (Justice Blackmun told us afterward that he feared we had defected).  I certainly do not know the Justice well, but he does appear to be a respectful and collegial fellow in individual and small-group interactions.

In public, however -- and, in particular, in his published opinions in which he disagress with others -- civiility is not a signature strength for Justice Scalia.  Though one could cite many examples from the opinions that he has crafted in nearly 30 years on the High Court, I will limit this discussion to the Justice's dissenting opinion in Maryland v. King.

Here follow some of Justice Scalia's assertions in his dissent:

1.) "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous.  And the Court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work."

Translation:  The majority is lying about what it is doing, and its reasoning would only persuade those who make the mistake of getting their information about the case from the majority."

2.)  "The truth, known to Maryland and increasingly to the reader:  this search had nothing to do with establishing King's identity.  It gets worse."

Translation:  The reader is undoubtedly outraged to learn the truth that the majority tried to obscure, but I haven't even gotten started.

3.) "That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores)."

No translation needed.

It is unquestionably entertaining to read Justice Scalia's opinions, largely because of his willlingness to attack his colleagues with sarcasm, accusations of lying, and bad faith, as he does here.  Legal opinions can sometimes be dry and difficult to navigate, but Justice Scalia makes the law come alive with fists swinging.  Conflict is fun to watch; harmony is not.

Nonetheless, it is likely that Justice Scalia's colleagues on the other side of a case find his sarcasm and accusations considerably less fun than readers do.  It can be difficult to think of Justices on the Supreme Court as real people like the rest of us, with feelings.  But Justice Scalia -- as one of those Justices with feelings (feelings he readily -- and sometimes quite disturbingly -- vents in the U.S. Reports), must realize that his colleagues too have limbic systems in their brains, just as he has.

Working with someone who regularly resorts to sarcasm and accusations takes its toll.  I took a course last year in non-violent communication, and one of the things we learned is that it is far more effective (not to mention kind) to voice our negative reactions in terms that respect the feelings and needs of those around us.  The goal is not to suppress our feelings but to express them in ways that are not threatening and degrading to others.

Consider a trivial hypothetical example.  You are  riding in the "quiet car" on a train and find your neighbor's cell phone conversation infuriating.  You might be tempted to shout "SHUT THE F--- UP?!  ARE YOU TOO STUPID TO UNDERSTAND WHAT THE WORD "QUIET" IN "QUIET CAR" MEANS?!"  You might choose instead, however, to say, "Excuse me, sir/m'am.  I wanted to let you know that I chose the quiet car in order to read and work during the ride without distraction.  Hearing your cell phone conversation makes that very difficult for me.  Would you please end your conversation or continue it in another train car?  I'd be very grateful if you did that."

In some ways, the first approach might be more satisfying if you are feeling enraged and enjoy venting.  At the same time, however, you do not really know very much about the life of the person on the cell phone (apart from what you have gathered from the converastion you have heard thus far).  Perhaps he or she just learned of the death of a parent or is on his or her way to undergo chemotherapy.  If you knew these facts, your anger would probably subside, and your outburst would cause you shame.  Screaming and swearing at the other person essentially treats him or her as simply a receptacle for your negative emotions, one that must be pressured into "behaving" properly; speaking respectfully about what it is you want and need while simultaneously remaining cognizant of what he or she might want or need, leaves the door open for reciprocal consideration.

I do not propose, of course, that Justice Scalia write a dissent in which he identifies his feelings and needs alongisde those of the majority.  Non-violent communication, however, would caution against hurling nasty accusations against his colleagues -- colleagues whose majority opinions he is often more than happy to join.  The fact that he is dissenting is, alone, enough evidence that he is unhappy with the outcome of the case without the copious zingers.  On occasion, a result might represent such a miscarriage of justice that it calls for a dissent that essentially calls out one's opposition for their outrageous conduct.  But even then, such rhetoric is likely to be unproductive and hurtful.  And in the run of cases, it seems both inappropriate and immature.

Years ago, I told my students to read Justice Scalia's opinions carefully -- particularly the ubiquitous jabs and
sarcasm, as examples of how not to act if one wants to build coalitions and cultivate mutual respect among one's colleagues.  At the time, I credited Justice Scalia's routine use of violent (in the sense of nasty and disrespectful) rhetoric with giving Justices Kennedy and O'Connor pause about the areas in which they shared Justice Scalia's views.  Whether this bit of psychoanalysis is accurate or not, it seems clear that creating an atmosphere of collegiality and safety and the room to disagree without fearing an attack is an endeavor that is both good for its own sake and likely to foster fewer unnecessary disagreements.  Growing up -- for those in high and low places alike -- requires noticing that one shares the world with others whose feelings are entitled to respect.