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.
Well, as I see it, there is age, arrogance that has deepened with time, and pent-up frustration. Justice Scalia thinks that his own ideas are so obvious that only buffoons and charlatans could possibly disagree with them. The fact that he understands that many of his ideas will soon be laughed at as examples of reactionary hypertraditionalism probably grates on him. He wants to leave a lasting legacy, but he sees that even his very considerable intellect and powerful personality will not be sufficient to guarantee it. It is no surprise to me that the snark, which originates in cleverness and arrogance, is getting more pronounced with age. Let me add that the head-in-a-bag stuff shows that Justice Scalia has moved from snark to mean-spirited insults. This is conduct unbecoming of a judge, any judge. It is also conduct unbecoming of a Catholic, for whom humility should be a virtue and arrogance the worst of all the vices, being at the source of the other six cardinal sins.ReplyDelete
I think Roberts is the ideal writer, although Kagan might be 1b. Scalia is third in non-political cases; in high-profile political cases he instantly transforms into "Random Old Guy Watching Fox News."ReplyDelete
That being said, I found "hide my head in a bag" an attack on the four liberals for not writing a concurrence, claiming implicitly that they are lying about the reasoning for their four votes. Scalia is trying to draw out the real reasons for most of the support for gay marriage - EPC reasons - perhaps in hope of then bringing Kennedy back to the dark side.
In any event, it did not work.
I take, minus a bit of the snark, perhaps, Kagan (a previous academic -- how surprising!) would be a model for Prof. Dorf in respect to legal writing.ReplyDelete
I don't see Kagan as being particularly snarky. Or at least her snark is directed outward rather than inward--she doesn't criticize her colleagues as much as the positions of the parties (see, e.g., her line in Reed that the sign ordinance "cannot withstand strict scrutiny, intermediate scrutiny, or even the laugh test"). She is more likely to use examples and hypos to explain her points, which can be a bit over-simplified at times, but also can be very readable.ReplyDelete
The Chief sometimes seems to be trying too hard to be catchy or funny in his use of phrases and language, and it often comes across as cloying. See, e.g., his opinion in Gunn v. Minton describing "arising under" jurisprudence--"we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first."
Dare I state the obvious? Words like Scalia uses reflect a lack of professionalism. He's part of the culture of buffoonery that's so popular in some circles. Witness Trump's increased popularity as he makes remarks at which civilized people wince. Or Christie's affectation of a wise-guy attitude despite his upbringing in blue-blood Mendham. Buffoonery sells. The image I get of Scalia and his ilk is that of an overgrown child with limited social skills and no filters. A properly trained lawyer behaves like a gentleperson at all times and would not write so disrespectfully about those of his colleagues with whom he disagrees.ReplyDelete
Justice Scalia has said that he is a [right-wing] talk radio listener. I sometimes am too, so I know that those performers and/or believers (Limbaugh, Hannity, Levin, etc.) often voice extreme personal attacks on and demonize those who aren't their fellow "patriots." Perhaps that style is influencing the Justice.ReplyDelete
I do appreciate that Prof. Dorf shows consistency on his position: http://www.dorfonlaw.org/2013/07/was-justice-kagans-snarkiness-in.htmlReplyDelete
As a culture we are certainly less formal. Prof Dorf's theory strikes me as most credible. A confluence of factors of the kind he identifies, along with the Court's increased role in settling the most contentious political disputes (and broad acceptance thereof) means the Court is increasingly writing to explain/appeal to the masses (an intent that Kagan makes no secret of).
In Obergefell, I read Scalia as engaged in a sort of gallows humor. Though as Prof Dorf notes, reasonable minds can differ. Some, like Justin here, see Scalia's criticism as suggesting some kind of dishonesty by the liberal Justices. Justin believes Scalia is suggesting that Justices are "lying" about their votes...which Justin appears to believe is the case? If so, that's not as much of a criticism of Scalia.
I considered the line to which the footnote was appended to be self-deprecating:
"It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so."
Scalia's self-aware snark is more palatable than the majority's opening line pretending to be coherent constitutional doctrine.
I think Chemerinsky is unreasonably fearful and shouldn't avoid teachable moments. Finally, I agree that moving to less formal writing is a good thing. There is a legitimtate fear that we are sliding closer to the world as portrayed in Idiocracy, but as long as there is a coherent legal argument behind the snark I don't think there is a problem.
"Scalia is trying to draw out the real reasons for most of the support for gay marriage - EPC reasons - perhaps in hope of then bringing Kennedy back to the dark side."ReplyDelete
Scalia has been sneering (I think that's appropriate here) at what a critic might deem "hippy-dippy" language for years now, particularly finding O'Connor and Kennedy distasteful at times. This isn't novel. I think that is the reason for the language.
The "opening line" is more rhetorical flourish than "coherent constitutional doctrine." OTOH, the opinion itself provides this "doctrine" mixing fundamental rights jurisprudence of longstanding precedence with equal protection concerns, which again is of longstanding usage in various cases. The opinion provides numerous citations and discusses the connection. The Loving v. Va case many cite as a clear parallel also used both prongs.
Some here might WANT EPC to be the basis of the decisions, but it appears to me that the justices of the majority was okay with Kennedy's approach. RBG has mixed fundamental rights and equal protection in the past (particularly as applied to abortion). She was involved as an advocate in some of the cases discussed in the opinion. And, she was the author of at least one opinion in part reliant on marriage being a fundamental right. Finally, EPC very well could have been more "activist" and RBG is more pragmatic about such things.
Both Breyer and Sotomayor, particularly Sotomayor, spoke of a "right to marry" during oral argument. Breyer in various opinions, including a recent dissent, supported substantive due process and supports a balancing approach that is copacetic to the majority opinion. And, Scalia has repeatedly strongly opposed Breyer's position as too wishy-washy in some fashion. I saw sign Kagan rather a EPC approach either.
My original, and largely persistent, reading was also that Scalia was focusing on the language used (but also the "wishy washy" approach), which to me made it not some kind of line-crossing personal insult. One can read plenty into the clause about the cost of a vote but it struck me as a means of emphasizing his disdain for the language. Joe, I agree with your take on the liberal Justices. And I think your description ("is more rhetorical flourish") helps to explains Scalia's critique of the sentence which, to his eye, is a questionable (or perhaps obviously false) premise sandwiching several arguably unecessary would-be parantheticals. You're right the 'doctrine' is expounded upon in the opinion and that the mixing of the two prongs has precedence in Loving. However, the manner the majority proceeds in Obergefell seems to leave Scalia seeing a blivet.ReplyDelete
The "head in the bag" stuff to me is a personal insult and it crosses a certain line. Talking about "pretentious as its content is egotistic," how "profoundly incoherent" it is, talking about how we should ask the nearest hippie, how the opinion will "diminish this Court’s reputation for clear thinking and sober analysis" is at some point overkill. The whole opinion is pretty gratuitous especially as usual seemed to be as much about him clowning around and venting than stating dissenting viewpoints.ReplyDelete
If he's concerned about the reputation of the Supreme Court, look in the mirror. Rhetorical flourishes are not unknown in USSC opinions and calling out those who joined one here as "head in the bag" worthy is more distasteful.