by Michael Dorf
As I noted earlier in the week, on Tuesday I was one of the panelists for the Practicing Law Institute's all-day Supreme Court Review session. Many interesting topics were discussed. Here I want to consider one set of them: The rudeness of Justice Scalia's dissent in Obergefell v. Hodges, especially these lines: "The opinion is couched in a style that is as pretentious as its content is egotistic"; "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began [as the majority opinion begins] I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." These lines raised a number of questions.
(1) Is this really new? Supreme Court litigator Kannon Shanmugam (who is a former clerk for Justice Scalia) reminded everyone that Justice Scalia has been snarky for a long time. Prominent examples discussed by the panel included his concurrence in Webster v. Reproductive Health Services (1989), in which he called Justice O'Connor's opinion "irrational," his dissent in Planned Parenthood v. Casey (1992), in which he headed sections of his analysis with quotations from the plurality/majority opinion, which he then proceeded to mock, and his dissent in Lawrence v. Texas (2003), in which he lamented that the majority's rejection of morality simpliciter as a basis for forbidding same-sex sexual intimacy was no different from rejecting morality as a basis for forbidding, among other things, prostitution and bestiality. Point taken. Nonetheless, to my ear at least, "hide my head in a bag" is different in kind. Reasonable minds can differ.
(2) Is the phenomenon spreading? As I've noted before (here and here) Justice Kagan can be quite snarky. She has not reached Justice Scalia's level of rudeness to colleagues, but she certainly does not pull her punches. There was consensus among the panel that after Scalia, Kagan is the most likely to try to reach for a bon mot that occasionally comes with a dagger, and that occasionally Justice Sotomayor and Chief Justice Roberts will do the same.
(3) Assuming the increased snarkiness is real, what is the cause? One suggestion we discussed was that Justice Scalia has influenced his colleagues. That's possible but it strikes me as unlikely. The attacks on the rationality and style of his colleagues can only have the effect of alienating them. No Justice could look at Justice Scalia's occasional displays of ill temper in the U.S. Reports and think that this is the way to build a coalition for one's views.
(4) Another hypothesis--floated by NYU law professor Burt Neuborne--is that Justice Scalia has long had an "academic" style in which one pulls no punches. Professor Neuborne described the culture at NYU faculty workshops as conducive to the sort of style Justice Scalia sometimes adopts with respect to his colleagues. This hypothesis strikes me as plausible, if suitably narrowed. For one thing, faculty cultures differ. On each of the faculties that I have been a member (Rutgers-Camden, Columbia, and Cornell) the culture is much more polite. Colleagues ask substantively tough questions but it would be very unusual to attack someone's writing style or rationality. I have also presented papers at numerous law schools, including NYU, and even at the most aggressive of such schools, I've always found that tough comments and questions were directed at the substance of my argument, not my style or my person. That is even true at the University of Chicago--which has the reputation for having the most aggressive style of questioning and, more importantly, is where both Justice Scalia and Justice Kagan were faculty members. (Scalia started at UVA, then did a stint in government, and then went to Chicago, whereas Kagan started at Chicago and then, after her stint in government, went to Harvard). I agree with the suggestion that the influence of the U Chicago culture may explain why Justices Scalia and Kagan are more aggressive than their colleagues, but I don't think that's a full account of the phenomenon.
(5) My hypothesis is that to the extent that we are witnessing a general increase in snarkiness on the Supreme Court, internet culture may be partly responsible. In the competition for eyeballs, snark rules. Now this is admittedly simply a guess based only on my own informal observations. I have noticed that in my own writing for popular audiences (such as this blog), I tend to be more informal and thus perhaps occasionally more nasty than I ought to be. I try for a more detached tone in my academic writing for journals and books, but inevitably one's style bleeds over from one venue to the other. And of course, twenty-something law clerks are creatures of the internet. To be sure, to my knowledge, Supreme Court Justices don't blog or spend much time on Facebook, but in this as in so many other respects, they don't live in a vacuum and are thus influenced by the broader culture. If this is an age of snark, it would not be surprising to see that snark reflected in the U.S. Reports (and in lower court opinions as well).
(6) During our discussion at the PLI session, Touro emeritus professor Marty Schwartz and UC-Irvine dean Erwin Chemerinsky both noted that if a lawyer wrote in a brief some of the things that Justice Scalia writes in the U.S. Reports, he could well be disciplined by the bar or sanctioned by the court. Imagine a brief that described an argument by opposing counsel as "pretentious" or "egotistical," or asserting that anyone associated with it should hide his head in a bag. Professor Schwartz wondered whether there ought to be any mechanism for disciplining Supreme Court Justices for similar rudeness. The rest of us thought that was impractical.
(7) Dean Chemerinsky said he worries that snarkiness or even rudeness in Supreme Court opinions would influence students. He said (over lunch but this is hardly a secret) that for that reason and because he thought it was a distraction, in his 2015 casebook supplement he edited out Justice Scalia's pretentious-egotistical-hide-my-head-in-a-bag language. I told him that in the portion of the casebook supplement and Leading Cases (the abridged version of our casebook, updated annually) for which I am responsible, I left that language in. Although I agree that the language is potentially distracting from the main thrust of the substantive argument, I think it is useful for sparking a discussion about whether the passion expressed by Justice Scalia (and to some extent by the other dissenters) is wholly explained by his (and their) views about jurisprudence, rather than the normative desirability of a right to same-sex marriage. It strikes me as no accident that Justice Scalia's snarkiest snark comes in abortion and gay rights cases. Other faculty who use our casebook might choose to explore other issues with the pretentious-egotistical-hide-my-head-in-a-bag language or to ignore it entirely, but I thought it worth including to give con law instructors options. (I do not mention the language in the notes & questions that follow the case.)
(8) I also worry less than Dean Chemerinsky does about students emulating Supreme Court Justices in their writing. To my mind, the biggest problems with competent writing by law students are: (a) the mistaken impression that they ought to be writing in legalese as opposed to simple prose; and (b) the mistaken impression that good legal writing is boring. (Incompetent writing is its own problem, but I put that to one side.) Whatever else one might say about Justice Scalia's writing, it is accessible and interesting. Very few of our students will end up as judges and so the disciplinary mechanisms applicable to lawyers will prevent them from going too far over the line into nastiness. Meanwhile, if the examples of Justices Scalia and Kagan lead them to write in a more engaging style, that would count as a positive for me.