Tuesday, February 16, 2016

In Memoriam: The Writing of Justice Scalia

Steve Petteway
Collection of  the Supreme Court
of the United States
As we all know, Justice Scalia passed away unexpectedly last weekend at the age of 79. Justice Scalia's ideologies and judicial philosophies made him a lightning rod for criticism, even in death. Those ideologies aside, most of us who study legal writing agree that Justice Scalia was one of the Court's best writers. Acerbic at times, yes. But always pointed, powerful, precise--just what we're looking for in good legal writing.  Especially in dissents, which Justice Scalia was famous for.

In remembering her friend, Justice Ginsberg said that Justice Scalia's dissents made her opinions "notably better" than the drafts she initially circulated.   

My favorite piece of advocacy (yes--advocacy) from Justice Scalia is his Atkins dissent, which includes four of the most powerful sentences I've ever read. The Atkins majority held that the 8th Amendment's prohibition again cruel and unusual punishment bars the execution of the mentally retarded (the Court's words). Justice Scalia turned the tables, advancing his opinion that Atkins' crime was the only thing cruel and unusual in the case:  

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. 

I'm also fond of Justice Scalia's "monster" critique of the Lemon test in his Lamb's Chapel dissent:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weismanconspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.  

As for one-liners, many have cited Justice Scalia's opening in Block, issued while he was a member of the D.C. Circuit, as his best

This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that "No man should see how laws or sausages are made."

In a 2013 interview, Justice Scalia told Jennifer Senior of New York Magazine that his favorite one-liner was the "wolf line" from his dissent in Morrison. The Morrison case involved a separation of powers question, and in his dissent, Justice Scalia wrote: 

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that a gradual concentration of the several powers in the same department, can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

In recent years, Justice Scalia gave us some fun phrases: argle-bargle (from Windsor), jiggery-pokery and pure applesauce (from Burwell), and judicial Putsch (from Obergefell). His use of language even inspired Slate to create Antonin Scalia's "Sick Burn" Generator. My insult?

One would think that Megan's arrogance is a genetic panopticon. Words no longer have meaning.

Apropos? Ironic? Maybe both, but also "pure" Scalia.

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