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Not Mere Rhetoric: on Wasting Or Claiming Your Legacy, Justice Scalia Marie Failinger Mitchell Hamline School of Law, [email protected]

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Not Mere Rhetoric: on Wasting Or Claiming Your Legacy, Justice Scalia Marie Failinger Mitchell Hamline School of Law, Marie.Failinger@Mitchellhamline.Edu Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 2003 Not Mere Rhetoric: On Wasting or Claiming your Legacy, Justice Scalia Marie Failinger Mitchell Hamline School of Law, [email protected] Publication Information 34 University of Toledo Law Review 425 (2003) Repository Citation Failinger, Marie, "Not Mere Rhetoric: On Wasting or Claiming your Legacy, Justice Scalia" (2003). Faculty Scholarship. Paper 358. http://open.mitchellhamline.edu/facsch/358 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Not Mere Rhetoric: On Wasting or Claiming your Legacy, Justice Scalia Abstract The thesis of the article is that the Court’s enterprise is centered on preserving community through an ethics of warranted trust, and that Scalia’s rhetoric often rejects such an ethic. A modern democratic citizen, along with his whole community, instead finds himself in the situation of necessary trust in democratic institutions like the Supreme Court. The willingness of a political community ultimately to place its trust in authority is partially dependent on that authority’s commitment to, and skill at, creating a convincing argument. The practice of rhetoric recognizes the dynamics of a relation of trust: the rhetor must put his or her own character up for judgment, he or she must create a situation of warranted trust by doing the homework on the matter at hand which Aristotle labeled invention, and he or she must demonstrate respect for the personhood—sacredness, if you will—of those who constitute his audiences by paying attention to who they are and what matters to them. Keywords Rhetoric; Scalia, Antonin, 1936-2016 Disciplines Law and Politics | Law and Society | Rhetoric This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/358 ARTICLES NOT MERE RHETORIC: ON WASTING OR CLAIMING YOUR LEGACY, JUSTICE SCALIA Marie A. Failinger" D EAR Justice Scalia, As I'm assure you are aware, you have been the subject of an unusual amount of scholarly attention since you were named to the United States Supreme Court in 1986.' Much of that attention has been directed at trying to articulate or rationalize your jurisprudence,2 a difficult endeavor with the work of an intelligent and complex mind, particularly one like yours that fervently seeks, but refuses to be contained within, categories or absolutes. What seems to be different about the academic work on yourjurisprudence, Justice Scalia, is the level of barely disguised agitation that many of your analysts display toward your opinions. Erwin Chemerinsky even goes so far as to admit that he is no fan of you or your work;3 other detractors couch their dislike in seemingly more objective terms.4 Even some * Professor of Law, Hamline University School of Law. My thanks to my hardworking assistants, Paula Semrow and Linda Berglin, to Patricia Palmerton, Verna Congan and Doug McFarland for research resources, and to Howard Lesnick and Howard Vogel for their critiques. I. Professor David Zlotnik counted more than fifty (50) such articles in 1999, noting the fascination of scholars with you, David M. Zlotnik, Justice Scalia and His Critics: an Exploration of Scalia s Fidelity to His ConstitutionalMethodology, 48 EMORY L.J. 1377 (1999). Just a small sample of these articles (not to exponentially increase the length of this article) would include: J. Richard Broughton, The JurisprudenceofTradition andJusticeScalia s Unwritten Constitution, 103 W VA. L. REV 19 (2000); S. 1. Strong, Justice Scalia as a Modern Lord Devlin: Animus and Civil Burdens in Romer v. Evans, 71 S. CAL. L. REV. I (1997); Peter A. Lauricella, Chi Lascia La Via Vecchia Per La Nuova Sa Quel Che Perde E Non Sa Quel: The Italian-AmericanExperience and Its Influence on the JudicialPhilosophies of Justice Antonin Scalia, Judge Joseph Bellacosa,and Judge Vito Titone, 60 ALB. L. REV. 1701 (1997); George Kannar, The ConstitutionalCatechism ofAntonin Scalia, 90 YALE L. J. 1297 (1990); Price Marshall, "No PoliticalTruth: " The Federalist and Justice Scalia on the Separation of Powers, 12 U. ARK. LITTLE ROCK L.J. 245 (1989); Albert P Melone & Thea F Rubin, Justice Antonin Scalia:A First Year Freshman Effect? 72 JUDICATURE 98 (1988). 2. See, e.g. articles cited supra note 1. 3. See Erwin Chemerinsky, The Jurisprudenceof Justice Scalia: A CriticalAppraisal, 22 U. HAw. L. REV 385 (2000). 4. See, e.g., CASS SUNSTEiN, ONE CASE AT A TiME: JUDICIAL MINiMALISM ON THE SUPREME COURT 209-13 (1999); Stephen E. Gottlieb, The Moral Agendas of Justices O'Connor Scalia and Kennedy, 49 RUTGERS L. REV. 219 (1996); Mark Strasser, Domestic Relations Jurisprudenceand the Great Slumbering Baehr- On DefinitionalPreclusion, Equal Protection,and FundamentalInterests, 64 FORDHAM L. REV. 921,970-74 (1995). David Schultz and Christopher Smith have been particularly dogged critics. See, e.g., DAVID A. SCHULTZ & CHIuSTOPHER E. SMITH, THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA (1996); CiRISTOPHER E. SMITH, JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S CONSERVATIVE MOVEMENT (1993); David A. Schultz, Judicial Review and Legislative Deference: The Political Process of Antonin Scalia, 16 NOVA L. REV 1249, 1250-51 (1992) (comparing your jurisprudence to Manchester Liberalism); Christopher E. Smith, Justice Antonin Scalia and the Institutions of Government, 25 WAKE FOREST L. REV 783 (1990) [hereinafter UNIVERSITY OF TOLEDO LA WREVIEW [Vol. 34 of those who are more sympathetic to what you are trying to do are not quite sure they have you right.' This outpouring of work probably suggests less that you have offered some startling new brand of jurisprudence--and indeed, you often suggest that your arguments are obvious and commonly accepted rather than unique or innovative - than that your rhetorical style has, more than the usual Supreme Court opinion, drawn some blood from your targets. In some ways, your style, which is written in a less "objective" voice than tradition would demand, suggests that you are more visibly conscious than other justices that there is an actual audience for your opinions. But I wonder if you have indeed been an effective rhetor for your views about constitutional interpretation among the audiences to whom the Supreme Court must pay attention. Take me as one example of these audiences. I am among those (who include members of your own bench) whose reaction to some of your opinions, especially in the area of human rights, has ranged from irritation to disbelief to downright anger. I can see why someone might think you are just a disdainful smart-aleck; your opinions often give the sense that you search for just the turn of phrase that will illustrate your own intellectual superiority and your contempt for others. It is almost as if you work at selecting 7language that will infuriate your opponents, cause controversy and get attention. This sort of reaction suggests to me that you have not always exercised the same discipline about your rhetoric that your biographers have suggested is a hallmark of your character 8-a discipline that is necessary to reflect the basic principles, practices and ethics that are constitutive of the rhetorical authority of the Supreme Court. To be sure, Justice Scalia, your rhetoric is certainly more entertaining than most Justices' opinions.9 But where such significant responsibility is reposed in a Smith, Institutions ofGovernment]; Christopher E. Smith, The Supreme Court's Emerging Majority: Restraining the High Court or Transforming Its Role? 24 AKRON L. REV 393 (1990) [hereinafter Smith, Emerging Majority]. 5. See, e.g., Marshall, supra note 1, at 255, 258; George Kannar, Strenuous Virtues, Virtuous Lives: The Social Vision ofAntonin Scalia, 12 CARDozO L. REV. 1845, 1845-46, 1864-67 (1991). 6. See, e.g., Zlotnik, supra note I at 1378 (noting your claim that only your "methodology is faiihful to the Constitution"); Smith, Institutionsof Government,supra note 4, at 794 (noting that you seem to recognize yourself as the sole guardian of the institutional structures of government). 7 See Robert Post, Justicefor Scalia, N.Y REv. BOOKS, June 11, 1998, at 57, cited in Zlotnik, supra note 1, at 1378 ("Charming and pugnacious, he appears to enjoy and sometimes even to court controversy "). 8. See, e.g., Gottlieb, supra note 4, at 233 (1996) (noting Kannar's description of your vision as "based on self-discipline, stability and objectivity"); M. David Gelfand, Justice Scalia: A Passionate,Affable Conservative with a Twist, in EIGHT MEN AND A LADY- PROFILES OF THE JUSTICES OF THE SUPREME COURT 243 (J. Joseph ed., 1990) (describing you as "energetic, jovially argumentative, disciplined and conservative," and noting your emphasis on hard work and commitment); Kannar, supra note I, at1323 (noting your sense that "life is hard, and that legal and other choices are harsh as often as they are clear," and your view that"inequities are the price of 'being strong enough to obey' strict textual discipline"). 9 In the modem sense, that which attracts attention is memorable, though it would not live up to Aristotle's standards: Things that deserve to be remembered are noble, and the more they deserve this, the nobler thev Spring 2003] NOT MERE RHETORIC human institution like the Supreme Court, it seems incumbent for a judicial rhetor to go beyond producing memorable speeches to focus on being convincing, on persuading even his most antagonistic audiences that his argument is sound and, in some cases, to move them to action." Sometimes your opinions suggest that you do not pay much attention to the basics of argumentation, organization and style in opinions in cases of key importance to a pluralistic democracy such as ours.
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