Wednesday, June 12, 2013

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.


Shag from Brookline said...

"Should dissents be classified on a 'Scalia of 1-10' (10 being Mt. Etna erupting)?"

Over the past several years, I have commented on Justice Scalia dissents in this manner at various legal blogs. As the master of "slippery slope" dissents, consider the deftness of Scalia in Heller in his dicta on Second Amendment limitations in attempting to pre-empt "Slippery Slope" dissents to his majority opinion. Scalia can be "good" Justice and "bad" Justice, but not at the same time.

Paul Scott said...

I sort of have two prongs to this, one serious and one less so. I'll start with the serious one.

Do you accept that Justice Scalia's overarching viewpoint, across a broad array of issues, starting back in the 80's, is now largely the view of the court? If his acerbic style really is a barrier to persuasion, how do account for this? Are you suggesting (and you may be) that Justice Scalia's manner is responsible for the court being less right-wing than it otherwise may have been (possibly explaining part of less-than-completely-radical positions of Justice Kennedy)?

I am curious to any serious analysis on these points because it seems to me that Justice Scalia has largely been successful in moving the court to his viewpoint. If that is not actually true - that is the court was destined to path strongly right without Scalia's intervention and in fact Scalia's intervention has caused pushback that would not have otherwise been present, I'd love to see actual evidence to that effect.

Paul Scott said...

My second note is more to the point of "Sure, you are right - ' Conflict is fun to watch; harmony is not.'" Glad he is there to entertain. He is serving the interests of the many in exclusion of the interests of the few - and those few also happen to be the most elite, privileged individuals in our society. None wield more power with no personal consequences. They are the closest things we have to royalty. If their price is the occasional (or even not so occasional) jab from Scalia, then I can't find myself crying too much about it. Especially when, in return, even though I find his vote dangerous and the substance of his opinions largely wrong, there is no Justice I more enjoy reading.

At this point it has become clear to me that a 100-page, dry, over-referenced opinion by Kennedy is no less results driven and no more intellectually satisfying, than a short entertaining quip-filled dissent by Scalia. I just wish the left (not there there is a "the left" on the court) had a Scalia too.

Michael C. Dorf said...

In response to Paul:

a) The standard example of Justice Scalia driving a potentially sympathetic colleague away is his calling Justice O'Connor irrational on abortion:

b) I see no real evidence of Justice Scalia moving the Court to textualism/originalism through persuasion. What I see is that over the last three decades, Republican Presidents appoint conservatives who are already sympathetic to textualism/originalism, while Democratic Presidents appoint moderates/liberals who are not. It's arguably true that Justice Scalia has played a substantial role in advancing the case for textualism/originalism WITHIN the conservative legal establishment that produces Republican nominees, but in that venue he's not insulting anyone.

c) I think there's some evidence that Justice Kagan is stylistically similar to Justice Scalia. See:

Sam Rickless said...

I actually think there is room for very pointed, and sometimes angrily indignant language in dissent. But that room exists in some very rare cases: (a) when the decision of the majority destroys or seriously imperils values that lie at the very heart of the Constitution, and (b) when the argument of the majority is pretty obviously mistaken. Some standard examples: Dred Scott, Slaughterhouse Cases, Bradwell, Plessy, Bowers. My own view is that Justice Scalia pays far less attention to (a) than he should (e.g., his comments about a "homosexual agenda"), and that his own overweening arrogance leads him to overestimate the number of circumstances in which (b) applies. Of course, sometimes Justice Scalia gets it right. And he may well be right in Maryland v. King.

It's true, I think, that *in a working environment in which particular kinds of norms of civility and mutual respect properly prevail*, a policy of avoiding zingers and sarcasm is likely to be more productive. But sometimes outright indignation is the *right* reaction, and I wouldn't want us to forget about the times when it is appropriate. My sarcasm, zingers, and worse are ready for use on Nazis, homophobes, apologists for sexism, rank hypocrites, those who prey on the defenceless, self-serving fact-deniers, and so on, under the right circumstances.

pvineman1 said...

Although he has a penchant for writing stinging dissents, I believe that there is a reason that Scalia's dissent in King was particularly abrasive: There is bad blood between him and Justice Kennedy (the author of the majority opinion).

Some evidence that supports my speculation:

Scalia has said on several occasions that Crawford v. Washington is one of the most important opinions that he has authored during his tenure on the Court. Indeed, the meticulously detailed opinion is his prized possession and Exhibit 1 of his brand of originalism. Together with Justice Thomas, Scalia had been trying since joining the Court to convince his colleagues that the Sixth Amendment's Confrontation Clause had never been properly interpreted by the Court, since the inception of the nation.

Finally, in 2004, in Crawford, Scalia succeeded. He got seven justices, including Kennedy and Breyer, to agree with his conception of which hearsay declarants are "witnesses" under the Confrontation Clause. The long battle had been one. His "testimonial" approach was in place and had a strong majority behind it. (I tend to think Scalia views a lot of what takes place between the justices as "battles" to be won or lost. And I am certain he hates losing.)

However, Scalia's monument to his brand of originalism began to unravel in 2009 when the Court decided Melendez-Diaz v. Massachusetts. And who was behind the assault on his Sixth Amendment monument? No one other than Kennedy who authored a strongly-worded dissent arguing that the Court (i.e., Scalia) completely screwed up when it decided Crawford. Kennedy said Scalia's baby was nothing more than the recitation of "wooden rules" divorced from "common sense," precedent and history. Indeed, Kennedy's language was particularly harsh (i.e., "in your face") for Kennedy. Adding insult to injury, Kennedy convinced Roberts, Alito and Breyer to join him in his assault.

It didn't end there. Next came Bullcoming v. New Mexico. Once again, Kennedy led the assault, with the same troops behind him. Although Kennedy's words were less vapid than in Melendez-Diaz, it would have been obvious to Scalia that his hold on the Confrontation Clause was quickly slipping away.

Last term, Scalia's grip on Confrontation Clause jurisprudence -- something that he so dearly desired for decades -- was basically obliterated in Williams v. Illinois. At least Kennedy (obviously with Justice Roberts' assent) had Justice Alito deliver the final blow to Scalia's short-lived regime.

I don't believe Scalia has ever forgiven Kennedy (or will ever forgive Kennedy) for his leading "traitors" in their attempt to overthrow his palace -- a palace that he been trying for decades to build.

Add to this the rift that exists between Scalia and Kennedy when it comes to a number of other constitutional areas, especially regarding the criminal justice system, and one can begin to understand what motivated Scalia to use his pen (and his voice, when he read part of his dissent from the bench) to launch a frontal assault on Kennedy's intellect and honesty.

However, IMHO, Kennedy will land the final, most damaging, blow when, sometime before his stepping down from the Court, he joins the four "liberal" justices in declaring capital punishment unconstitutional. Assuming that Scalia is still on the Court, the declaration that death has died will push Scalia over the edge.

David Ricardo said...

Am I the only one who just cannot wait to read Justice Scalia's dissent (and hopefully it will be a dissent) in the same sex marriage cases?

pvineman1 said...

EDIT: I meant to say "more" vapid, not "less" vapid, concerning Kennedy's words in Bullcoming.

Prof. Dorf, it would be nice if your blog would permit direct editing of comments after they are posted.

Ian said...

I don't know if this has anything to do with your point but I had Justice Alito as my Con Law professor back when I was in law school. Other students nicknamed him Scalito b/c of his conservative leanings but we learned that he absolutely hated that nickname. Now I'm sure no Circuit Court judge would be happy with that nickname but it seemed like he didn't want to be viewed as a Scalia disciple. And in real life, Professor Alito was extremely nice and helpful and a fine teacher.

Ian said...
This comment has been removed by the author.
Paul Scott said...

" It's arguably true that Justice Scalia has played a substantial role in advancing the case for textualism/originalism WITHIN the conservative legal establishment that produces Republican nominees"

But isn't that all that matters? I don't expect anyone, super nice or complete ass, to change the minds of their 55+ YO colleagues on matters of legal or moral philosophy. Isn't that the big mistake we keep harping on Obama (and other "liberals") about? He is trying to convince conservatives to "work with him" and "compromise" when nothing of the sort is ever going to happen?

If Scalia, which includes his derision, has been a big influence on the conservative movement (and thus an influence on the sort of votes conservatives appoint) then doesn't that mean he has been successful in transforming the court to his vision?

Why hasn't Kennedy's conservative vision carried the day with the party, for example? It is not as if Kennedy has not had Scalia's time or intellectual capacity and (in spite of what the popular press might say from time to time) its not as if Kennedy is a moderate (like Souter).

tjchiang said...

I'm largely in agreement with Paul Scott here, but would add a few points.

1. Scalia has succeeded not only in making originalism/textualism ascendant within the conservative legal movement, but also in at least in making liberals pay lip service to originalism/textualism as well. It may not be more than lip service, but it would be hard to dismiss the importance of lip service given the post's premises (that rhetoric affects results).

2. It is true that Scalia is not insulting conservatives in arguing for originalism/textualism, but he is still using the fiery style that Professor Colb criticizes for being both intrinsically bad and practically counterproductive. It is the "practically counterproductive" aspect of the argument that I find implausible. It is true, of course, that people who are subject to insult and abuse are rarely inclined to come to the abuser's viewpoint. But that is not the question. The question is whether the losses are outweighed by the gains. What Scalia is calculating that the colleagues he drives away today through insulting rhetoric (AMK and SDO) are outweighed by the benefits of persuading undecided law students and the public to shape legal opinion tomorrow, and his style is more apt to do that than if he wrote dissents in dry legalese. Whether his calculation is right is impossible to measure. But I would be skeptical of an account that says the rightward tilt of the Court over the last 40 years is entirely a function of exogenous political forces and has nothing whatsoever to do with Justice Scalia's rhetoric.

Joe said...

Scalia's rhetoric seems reflective of the sometime nasty style of Republican politics of the day & the abrasive style is part of a fight that helped make the conservative movement ascendant.

Is it sometimes counterproductive. Perhaps. After all, crafty strategists like Rehnquist avoided it. Still, the movement has had various successes. They are not crying in their coffee too much.

On the merits, I find the style problematic and quite un-justice like. I admire Kagan's down to earth style but like Prof. Dorf in a past post (as I noted at the time), her snark can get to be a bit much at some point. But, I have seen even conservatives respect her style. I also respect that Scalia, unlike Kennedy often, actually responds to the other side.

It is a bit striking how much bite judicial opinions can have in this country. It probably would surprise the uninformed. Also, at some point, it is a sign of weakness and desperation. See, e.g., Brennan and Marshall late in their career.

Joe said...
This comment has been removed by the author.
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