The Journal of Appellate Practice and Process

Volume 18 Issue 2 Article 5

2017

Disrespectful Dissent: Justice Scalia's Regrettable Legacy of Incivility

J. Lyn Entrikin University of Arkansas at Little Rock William H. Bowen School of Law, [email protected]

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Recommended Citation J. Lyn Entrikin, Disrespectful Dissent: Justice Scalia's Regrettable Legacy of Incivility, 18 J. APP. PRAC. & PROCESS 201 (2017). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol18/iss2/5

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 40357-aap_18-2 Sheet No. 47 Side A 06/11/2018 08:46:58 story story 2015 . 515, . 515, - EV see also, 323 (2014) .L.R 20170321 - OURT NG E C EW EW L.J. 427, 428 (1986). (1986). 428 L.J. 427, hearings - 215, 215 (2015) (finding (finding 215, 215 (2015) UPREME D S , 31 N , 31 2 Vol. 18, No. 2 (Fall 2017) (Fall 2017) No. 2 Vol. 18, court - ASTINGS AG 1 B 37 H ROCESS (Mar. 21, 2017), http://www.chicago http://www.chicago 2017), (Mar. 21, P Gorsuch: Trump’s Attacks on Judges Judges Attacks on Gorsuch: Trump’s supreme - GAINST THE REEN REEN A RIBUNE ASE gorsuch - .T C , 18 G HI HE RACTICE AND , C 428, 428 (2012) (noting widespread concern that decline that decline concern widespread (noting 428, 428 (2012) , T P “worse threatens the “long-term stability of than ever,” Incivility and Standing Firm: A Second Layer of Partisan Standing Firm: A Second and Incivility Civility and Public Discourse In Defense In Defense of Dissents, ) 6/4/2018 3:17 PM Meanwhile, the general tone of civic Meanwhile, the OLITICS 2 ELETE 53, 62 (referring to Justice Scalia’s “decadent language”); Richard 53, 62 (referring to Justice Scalia’s “decadent D PPELLATE .&P A OT HEMERINSKY Justice Scalia did not live long enough to witness Justice Scalia did not live long enough N CI 3 Disparaging the Supreme Court: Is SCOTUS in Serious Trouble? Serious in Court: Is SCOTUS Supreme Disparaging the C O .S ORWARD 1(D OL Erica Werner & Mark Sherman, Erica Werner & Mark RWIN RWIN . F The Most Sarcastic Justice Clarence Thomas, ); ,E , EV ESEND , 45 P , 45 OURNAL OF R J Just as we judge people by . . . the principles they reject as by . . . the principles they reject Just as we judge people well as the they values affirmatively we maintain, so do for the dissents, as well as their decisions look at judges’ judicial careers. court, as we evaluate During his nearly thirty years on the Supreme Court, the thirty years on the Supreme During his nearly E.g. E.g. .L.R HE , Michael R. Wolf et al., 2. 3. 1. WilliamBrennan, J. Jr., IS T NTRIKIN Division tribune.com/news/nationworld/politics/ct “unparalleled” Justice Scalia’s “nastiness, particularly directed at other Justices’ opinions”). L. Hasen, L. Hasen, .html (“When anyone criticizes the.html (“When anyone honesty and integrity or the motives of a federal judge, demoralizing.”). that I find I find that disheartening, e.g. 515–16 (1997) (“[C]ivility is disappearing from public discourse and515–16 (1997) (“[C]ivility . . . public conduct. be will others, by more civil, we example, to become . encourage[s] . . each of us [U]nless contributing to the erosion of that allow ourthe rules civil society to function.”); late Justice Antonin Scalia earned a reputation for writing for writing Scalia earned a reputation late Justice Antonin vitriolic dissents. and at worst dismaying discourse has become at best demoralizing. School of Little Rock William H. Bowen at *Professor of Law, University of Arkansas research stipend summer School’s 2016 Law gratefully acknowledges the The author Law. this article. in support of DISRESPECTFUL DISSENT: JUSTICE SCALIA’S JUSTICE SCALIA’S DISSENT: DISRESPECTFUL OF INCIVILITY LEGACY REGRETTABLE J. Lyn Entrikin* E (noting that Justice stood alone Scalia for “consistently” writing “with sarcasm”); Brian Christopher Jones, W in tone of political discourse is the ability to resolve complex public institutions”America’s governing and “damage[es] problems” “Demoralizing” “Disheartening,” 40357-aap_18-2 Sheet No. 47 Side A 06/11/2018 08:46:58 A 06/11/2018 47 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 47 Side B 06/11/2018 08:46:58 , In the ROCESS See, e.g. See, P Death of a . 4 (2010) 1, . 71, 96 (2003) EV . NST I his departure 6 .L.R Jeffrey Toobin, 7 INN RITING RACTICE ANDRACTICE W P , 95 M 33, 40–41 (Dec. 1994) (explaining 1994) (explaining 33, 40–41 (Dec. EGAL L e death of Antonin Scalia . . . jolted the . . . e death of Antonin Scalia And although he has been And although 5 PPELLATE ISTORY ISTORY , 9 J. A .H T The Importance of Dissent and The Importance Imperative of the .C . 583, 623 (1994) (emphasizing that dissents are (1994) 623 . 583, UP S EV Scalia’s Death Plunges Court, National Politics into Death Plunges Scalia’s (Feb. 15, 2016), http://news.harvard.edu/gazette/story/ http://news.harvard.edu/gazette/story/ 2016), (Feb. 15, OURNAL OF OURNAL J , 19 J. ) 6/4/2018 3:17 PM HE .U.L.R AZETTE Of Golf and Ghouls: The Prose Style of Justice Scalia Love Him Style of Justice Scalia Love Prose Ghouls: The Of Golf and ELETE , at 28 (“[T]h 2016, Oct. 3, AL The Role of Dissenting Opinions The D .G (Feb. 13, 2016), https://www.washingtonpost.com/national/scalias- 13, 2016), (Feb. The political discourse characterizing the 2016 characterizing discourse The political OT 4 N OST ARV O ORKER , 28 V .P Y , Robert Barnes, , Robert ,H 1(D ASH EW EW Edward McGlynn Gaffney, Jr., Jr., Gaffney, Edward McGlynn , Yury Kapgan, , Yury Kapgan, W ESEND ,N R The Dissenting Opinion Largely insulated from such outside political pressures, political pressures, such outside insulated from Largely reflected Scalia. His dissents frequently Not so with Justice See See, e.g. E.g. -plunges-court-national-politics-into-turmoil/2016/02/13/136c0590-d2a4-11e5-b2bc- . 7. 4 5. Despite the disdain Justice Scalia’s for the views opinions often expressed separate 6. NTRIKIN Judicial Civility Ruth Bader Ginsburg, Ginsburg, Ruth Bader Turmoil, (sidestepping the question by referring to her friendship with Justice Scalia); Antonin Scalia); Antonin friendship with Justice referring to her (sidestepping the question by Scalia, 2016/02/death-of-a-judicial-giant/ (referring to Justice Scalia as “a legal giant and defender defender giant and legal 2016/02/death-of-a-judicial-giant/ (referring to Justice Scalia as “a wit and formidable intellect”)rapier a with jurisprudence of conservative celebrated in death as a brilliant judicial giant, judicial in death as a brilliant celebrated from the custom of respectful dissent marked a turning point in in a turning point marked of respectful dissent the custom from and civility. the Court’s tradition of collegiality 202T could he out, nor played as it campaign 2016 presidential the partisan polemics death would reduce how his have anticipated low. to a new of civility in nadir modern the represented election presidential square. the public of civility, to norms hewed Court Justices long Supreme if not always reaching consensus. even and respect, collegiality, exceptions, few even Justices have disagreed about the With discourse. They respectful issues in mutually controversial legal for the demonstrated a deep appreciation have customarily that public democracy, and an understanding Court’s role in our is integrity institutional confidence in the Court’s respect and essential for its independence. majority. for the uncloaked scorn E essential for maintaining institutional integrity, but urging civility in expressing strong judicial disagreement). (referring to a quote from a dissent as “Scaliaesque”); Christina Pazzanese, Pazzanese, Christina as “Scaliaesque”); from a dissent (referring to a quote Judicial Giant institution and affirmed . . . a venerable truism, attributedinstitution to the late and affirmed . . . a venerable truism, Justice Byron White: Court.’”). whole the change you Justice, one change ‘When you as a result. any internal conflict disavowed they he and of his fellow Justices, that separate opinions “do not, or at least need not, produce animosity and bitterness among not, produce least need that separate opinions “do not, or at “normal”). which dissents are Court,” in the members of the Scalia Demands Attention or Hate Him, Antonin death (predicting political controversy that 988409ee911b_story.html?utm_term=.cc6ba93ac167 feature of thebecame a central 2016 presidential campaign); Balance 40357-aap_18-2 Sheet No. 47 Side B 06/11/2018 08:46:58 B 06/11/2018 47 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 48 Side A 06/11/2018 08:46:58 a . 425, EV Not Mere Mere Not Others 9 OLE IN THE .L.R R OL TS T The Jurisprudence The Jurisprudence Or does . 1061, 1077 (1994) (1994) 1077 . 1061, :I 11 407 (2015). 407 (2015). EV The Rhetorical Legacy of Legacy of Rhetorical The , 34 U. OURT L. R . 385, 401 (2000) (chiding (chiding 401 (2000) . 385, C EV IALOGUE ; Marie A. Failinger, Failinger, ; Marie A. ARY Perhaps the “sting” of Perhaps the “sting” D Chemerinsky, Chemerinsky, note 3, at 516 (decrying decline of (decrying decline at 516 note 3, 10 .L.R UPREME Brian Porto, .&M S , AW Erwin Erwin M supra supra , H . crossed the line between lively language and and lively language the line between crossed , 35 W 22 U. ONSTITUTIONAL , , 80 A.B.A. J. 50, 50 (Dec. 1994) (noting that the, 80 A.B.A. J. 50, 50 (Dec. Thomas, Thomas, C see also, e.g. S ’ Scorn Un-Courtly Manners: Quarrelsome Justices Are NoUn-Courtly Manners: Quarrelsome Justices see also, e.g. . ISSENT AND THE but cf. note 3, at 515–16. 515–16. 3, at note ATION ) 6/4/2018 3:17 PM 203 N ,D note 10, at 1077 at 10, note ELETE supra supra Justice Scalia in a public letter that apparently fell on deaf ears); fell on deaf ears); that apparently Justice Scalia in a public letter D note 5, at 36–37, 41. 41. 36–37, 5, at note . B.J. 28, 28 Justice Scalia’s tone as 2017) (characterizing (Summer note 7, at 624; 7, at note supra supra ISSENT T OT ROFSKY D N note 10, at 29 at 10, note 12 we might consider whether Justice Scalia’s we mightJustice whether consider O 8 supra supra I. U Thomas, Thomas, , 43 V 1(D , supra ISTORY AND THE Philip Allen Lacovara, H ESEND Part IV assesses whether the increasingly divisive tone of Part IV assesses whether the increasingly ELVIN S R ’ See Part I of this article reviews the Supreme Court’s history of of Court’s history reviews the Supreme Part I of this article Given the regrettable and apparently unchecked decline in in decline unchecked and apparently the regrettable Given See, e.g. 13 12. 11. Porto, 8. 10. Gaffney, 9. M 13. conceded the law,” Justice Scalia to change While dissentinghelp opinions “can ISRESPECTFUL OURT NTRIKIN Longer a Model of Civility for Lawyers Supreme Court “is not immune” and “appears disinclined to lead the legal profession back Supreme Court “is not immune” and “appears toward more civilized discourse”); of Justice Scalia: A Critical Appraisal Rhetoric: On Wasting or Claiming Scalia Your Legacy, Justice “prone to cross the rhetorical Rubicon between professional critique rhetorical Rubicon betweenand personal attack”); professional “prone to cross the & Jean Stefancic, Richard Delgado Justice Scalia for “the tone and rhetoric of his opinions”) rhetoric and Justice Scalia for “the tone Antonin Scalia (suggesting that Justice Scalia may have “ C impermissibly caustic speech”); matter for debate”). a civility is .“where Court, . . not civility elsewhere but praising the Justice Scalia’s aggressive rhetoric was “somewhat mitigated by mitigated rhetoric was “somewhat aggressive Justice Scalia’s to dissents.” by and large, its confinement, set a Court Justice always by a Supreme disrespectful dissent bad example? civility of opinions. Part II maps the declining issuing separate his four years as a circuit judge Justice Scalia’s dissents during the Court. Part III considers the on followed by three decades the influenced has jurisprudence Scalia’s Justice extent to which law. judicial ethics and Court dissents implicates Supreme D of our all branches discourse in of public the civility government, E course for government set a new vitriolic dissents increasingly we shouldAnd if they did, speech. for the implications consider not won “dissents have observed, his As one scholar his legacy. of his the force areas, despite and in some adherents, over many wrong side of history.” well be on the protest, he may contributes “the nastiness among the Justices have warned that among lawyers.”to the lack of civility 428 (2003) (addressing (addressing 428 (2003) & Stefancic, Delgado that dissents in the federal courts of appeals are more so likely to do than Supreme Court dissents. Scalia, 40357-aap_18-2 Sheet No. 48 Side A 06/11/2018 08:46:58 A 06/11/2018 48 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 48 Side B 06/11/2018 08:46:58 17 supra see also, ROCESS P 3 U.S. (Dall.) RACTICES P RACTICE ANDRACTICE P . 1463, 1466 (2006); 1466 . 1463, SSUING 14 159 & nn. 89, 133 (noting that (noting 133 89, & nn. 159 -I EV The Internal Powers of the Chief The Internal Powers note 14, at 146–48; Scalia, following the tradition of following the tradition .L.R A , United States v. Peters, 3 U.S. (Dall.) United States v. Peters, 3 U.S. (Dall.) , supra P PPELLATE PINION note 14, at note A O Penhallow v. Doane’s Adm’rs, Penhallow v. S ’ seriatim see, e.g. supra supra , 154 U. OURT Kelsh, C OURNAL OF OURNAL A. The Early Years A. The Early Years J ) 6/4/2018 3:17 PM HE note 14, at 140; note 14, at 140; ELETE note 9, at Kelsh, 46–47; see also D Most of the earliest reported Supreme Court Supreme the earliest reported Most of The Opinion Delivery Practices of Opinion Delivery Practices of the United States The Supreme Court . U. (1999). 137 L.Q. 137, OT note 14, White, Edward G. at 140; 16 and then often only reluctantly and even and then often only reluctantly N supra supra By the Court: We have consulted together on this motion; and, though a a on this motion; and, though together have consulted Court: We By the supra supra 15 O ASH , , Brown v. Md., 25 U.S. (12 Wheat) 419, 449–50 (1827) (Thompson, J., (Thompson, U.S. (12 Wheat) 419, 449–50 (1827) v. Md., 25 , Brown 1(D opinion was followed by a brief order disposing of the opinion was followed by a brief supra supra Kelsh, , 77 W , 77 Ga. v. Brailsford, 2 U.S. (Dall.) 402 (1792). (1792). 402 (Dall.) U.S. Brailsford, 2 v. Ga. VERVIEW OF THE History does not make clear why some of the earliest clear why some History does not make ESEND ROFSKY R See John P. Kelsh, See, e.g. Supreme Court Justices had the same not always have of dissent. the expression attitude toward For much of the Court’s early history, dissents were issued early history, of the Court’s For much 18 I. O , Bas v. Tingy, 4 U.S. (Dall.) 37 (1800); Cooper v. Telfair, 4 U.S. (Dall.) 14 (1800); (1800); U.S. (Dall.) 14 Telfair, 4 v. 37 (1800); Cooper U.S. (Dall.) 4 Tingy, Bas v. , 18. Kelsh, 17. 14. 16. 15. U seriatim NTRIKIN 121, 129 (1795) (“ (1795) 121, 129 difference of sentiment exists, a majority of the Court are clearly of opinion, that the granted.”). be motion ought to Justice: The Nineteenth-Century Legacy Marshall Court dissenters routinely expressed respect for fellow Justices). for fellow Justices). expressed respect routinely Marshall Court dissenters Talbot v. Jansen, 3 U.S. (Dall.) 133 (1795); 133 3 U.S. (Dall.) Talbot v. Jansen, 54 (1795); 1790–1945 note 5, at 34. 34. note 5, at diffidence”); very considerable and dissenting) (announcing dissent “with some reluctance, J., dissenting) (1805) (Washington, 398 Cranch) 358, United States v. Fisher, 6 U.S. (2 least that the opinion(feeling compelled to dissent at to “shew was not hastily or inconsiderately given”); only rarely, apologetically. “by the 1790 to 1800—were written opinions—issued from to the opinion’s author. name Court,” without attribution by About one fourth were issued an individual opinion. Often English courts, each Justice issuing a case. 204T Part V bar. Finally, and the bench among civility undermines the departure from Scalia’s frequent whether Justice discusses to the increasingly dissent contributed of respectful custom speech. The government of all contemporary tone negative take to Court should steps the by suggesting article concludes respect in of civility and as exemplars serve Justices ensure that public discourse. E e.g. 40357-aap_18-2 Sheet No. 48 Side B 06/11/2018 08:46:58 B 06/11/2018 48 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 49 Side A 06/11/2018 08:46:58 23 From From . 769, EV After , but in , but . 164, 168 168 . 164, 19 L. R EV 22 .L.R A Unanimity of of Unanimity ORNELL seriatim P 20 , Oliver Schroeder, Jr., note 9, at 46–47, 54; Cass , 100 C , 100 , 95 U. , 95 supra , http://teachingamericanhistory.org/ , see also, e.g. opinions. . . . Some of your brethren m 1835 to 1941, fewer than ten percent of than m 1835 to 1941, fewer ISTORY ROFSKY .H M seriatim A ) 6/4/2018 3:17 PM 205 note 9, at 54–55. 54–55. 9, at note EACHING note 9, at 54. 50, ELETE D , supra , supra supra ISSENT , OT note 14, at 141–42; U note note 14, at 155. Indeed, fro Indeed, 14, at 155. note D N O B. The Beginnings of Respectful Dissent B. The Beginnings but his tight rein over the Court’s early opinion- but his tight rein supra 1(D supra ROFSKY 21 ROFSKY U , U Unanimity and Disagreement on the Supreme Court on the Supreme Unanimity and Disagreement ESEND R See E.g. During Chief Justice Taney’s leadership, dissents were so dissents During Chief Justice Taney’s leadership, Chief Justice Marshall had his critics, including Thomas Thomas had his critics, including Chief Justice Marshall Beginning in 1801, opinions were almost exclusively exclusively were almost in 1801, opinions Beginning I rejoice in the example you set of will be encouraged to follow it occasionally, felt and in time, it may be by all as the primitive court be again restored. Why practice of and the sound a duty, and give it from the bench, opinion, if only should not every judge be asked his the public the fact of his opinion, which Besides ascertaining by yea or nay? it would not, whether it is impeachable or have a right to know, in order to judge and thus settle more exactly not, whether the opinions were unanimous or show authority. of their the weight at 47–54. In retirement, President Jefferson commended at 47–54. In retirement, President Jefferson Justice William Johnson— 21. President Jefferson criticized Chief Justice Marshall’s approach to issuing opinions. 23. Kelsh, 19. Kelsh, 20. 22. ISRESPECTFUL NTRIKIN Id. writing separately: of his practice Court—for to the among his appointees Sunstein, 786 (2015). 786 (2015). all Supreme Court opinions were accompanied by dissents. M. Todd Henderson, Henderson, dissents. M. Todd opinions were accompanied by all Supreme Court uncommon that Justices often apologized for offering them. uncommon that Justices often Justice William Johnson’s appointment in 1804, Chief Justice Chief Justice in 1804, appointment Johnson’s Justice William opinion writing, and Justice to rotate Marshall was persuaded issued separate opinions. Johnson occasionally the as entrenching has been recognized issuing practices co-equal branch of government. Court as a Supreme conclusion: Typical are this introduction and D and others Court” “by the issued were opinions Marshall era. weakened further later in the the Court’s decisions Jefferson, E no set form. opinions took early years its the Court’s of unifying as a means John Marshall by Chief Justice authored authority. institutional its and establishing the Court The Life and Judicial Work of Justice William Johnson, Jr. The Life and Judicial library/document/letter-to-justice-william-johnson/; Letter from Thomas Jefferson, Pres. of the U.S. (ret.), to William Johnson, J., S. Ct. of the T 1823), 12, 2 (June U.S., (1946) (crediting Justice Johnson for altering the Court’s practice of issuing a single dissenting opinions opinion and asserting that “concurring and restored an ancient had procedure which been neglected”). 40357-aap_18-2 Sheet No. 49 Side A 06/11/2018 08:46:58 A 06/11/2018 49 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 49 Side B 06/11/2018 08:46:58 Yet , supra , supra ROCESS 27 . 321 283, P U.S. Const. Const. U.S. EV ROFSKY .R T U .C see UP superseded by superseded RACTICE ANDRACTICE Dissents began to P 25 , 2007 S dissent, members of the Taney Court PPELLATE A Taylor note 14, at 150, 155–56; . . . . . supra OURNAL OF OURNAL Kelsh, Kelsh, J ) 6/4/2018 3:17 PM HE ELETE Dred Scott v. Sandford, 60 U.S. 393, 493 (1857) (Campbell, J., 493 (1857) 393, U.S. 60 Scott v. Sandford, Dred D , 24 OT note 14, at 157 (noting that “by the mid-nineteenth century, “Justices N e.g. O But even after separate opinions became less became But even after separate opinions 26 1(D at 157–59 & n.130. & n.130. at 157–59 supra at 159 (“Marshall Court Justices had gone out of their way to express their to of their way out gone Court Justices had (“Marshall at 159 ESEND R See id. Id. Taylor v. Carryl, 61 U.S. 583, 600–01, 617 (1857) (Taney, C.J., & Wayne, Grier & Grier & & Wayne, C.J., (Taney, 617 (1857) 600–01, U.S. 583, Taylor v. Carryl, 61 I dissent from the opinion of the court. The principle upon upon The principle court. of the the opinion from I dissent operate and will is so important, case is decided which the it I feel widely,mythat duty the grounds upon to show so done as briefly This will be which I differ. my as I can; for my upon which of law state the principles to object is at length. argue them rather than to formed, opinion is I do, upon the best And believing, as consideration I am the the subject, that the decision and able to give to court founds itself of the opinion the principle upon which the case is inapplicable to and that if it is before us, carried results it will deprive the admiraltyout to its legitimate of useful, and indeed necessary,power, [which is] for the and conferred on it bypurposes of justice, the Constitution recordI mustthe United States, respectfully and laws of dissent. my As the Court gradually took its place as a co-equal branch As the Court gradually took its 25. Kelsh, 26. 27. 24. NTRIKIN respect for the opinions of their brethren.”). of their brethren.”). opinions respect for the began to state that dissent was acceptable in order or to protect maintain their own records or reputations” and “began to defend dissent less to the issues involvedby reference and to themselves”). more by reference amends. XIII, XIV. concurring) (“I concur in the judgment pronounced by the Chief Justice, but the importance Chief Justice, but the importance by the pronounced concurring) (“I concur in the judgment and the responsibility involved it has awakened, expectation and interest of the cause, the opinion.”),in its determination, induce me to file a separate apologetic, they almost always used respectful rhetoric. apologetic, they almost Seriatim to Consensus and Back Again: A Theory of Dissent Seriatim to Consensus and Back Again: (2007). & tbl. 2 by the As suggested Clifford, JJ., dissenting). of government, Justices began writing separately to demonstrate separately to demonstrate of government, Justices began writing to rather than views over time the consistency of their individual specific issues. on express disagreements and views as separateunderscore the Justices’ principles of the Court’s members individuals rather than as faceless consensus. 206T E generally confined separate opinions to cases involvinggenerally confined separate opinions to cases constitutional questions and other of far-reaching public concern. note 9, at 57–58; note 9, at 57–58; 40357-aap_18-2 Sheet No. 49 Side B 06/11/2018 08:46:58 B 06/11/2018 49 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 50 Side A 06/11/2018 08:46:58 , as 39 Dred Scott Dred Scott . 1497, 1502 (2017) . 1497, 1502 (2017) at 469–93 (Daniel, J., at 469–93 (Daniel, the most divisive the most EV Justice McLean Justice McLean at 518–29 (Catron, J., J., (Catron, at 518–29 id. 29 , 31 id. Vidal v. Girard’s Vidal v. Girard’s L. R : The Heated Judicial Dissent, Judicial Heated : The at 564–633 (Curtis, J., dissenting). J., dissenting). (Curtis, 564–633 at id. A Conversation with Justice Ruth Bader ORDHAM at 454–56 (Wayne, J., concurring); 457–69 J., at 454–56 (Wayne, Dred Scott 30 . id. , 85 F ]. Cacoethes Dissentiendi Cacoethes at 469 (Grier, J., concurring); because each Justice issued a separate opinion. opinion. Justice issued a separate each because ) 6/4/2018 3:17 PM 207 id. ELETE 28 D seriatim ISSENT OT ], and every authority from the English chancery the English chancery ], and every authority from D N at 493–518 (Campbell, J., concurring); (Campbell, J., concurring); at 493–518 O at 529–64 (McLean, J., dissenting); J., (McLean, at 529–64 , Roscoe Pound, Pound, , Roscoe 1(D id. id. Ginsburg Conversation ESEND R Fontain v. Ravenel, 58 U.S. (17 How.) 369, 398 (1854) (Daniel, J., concurring) How.) 369, 398 (17 58 U.S. Fontain v. Ravenel, See, e.g. In this case, said that a slave a of the court have majority may be taken by into a Territory of the United his master property. other kind of States, the same as a horse, or any chattel. He bears the impress. A slave is not a mere of . . not prepared. [T]he decision . . . seems to me incomprehensible, unless [ to overrule as designed understood Executors such an For in its support. commented upon cited and decision of this court, wieldingassault upon the previous a and acknowledged and fatal at one great blow so trenchant mind is the head of trusts, head of equity jurisprudence, my Illustrative of internal norms of the Taney Court’s dissents, both respectful, Justices McLean and Curtis issued J. 794, 797 (Sept. 1953) (quoting a portion of Justice Curtis’s dissent as “a (Sept. 1953) (quoting model of 797 J. 794, 28. 29. Justice Ginsburg recently referred to 393 (1857). (19 How.) 60 U.S. 31. 30. purposes the majority opinion, for all practical While Chief Justice Taney authored ISRESPECTFUL NTRIKIN the most dreadful decision the Court ever wrote.” the most dreadful decision the Court ever wrote.” (citing Vidal v. Girard’s Ex’rs, 43 U.S. (2 How.) 127, 183 (1844)). 127, How.) (2 U.S. Girard’s Ex’rs, 43 (citing Vidal v. temperate, reasoned discussion of a hotly debated legal-political controversy in a time of exceptional political excitement”). objected to anything in the majority opinion beyond its holding objected to anything in the majority but he also respectfully that the court below lacked jurisdiction, central issue: addressed the Ginsburg and Professor Aaron Saiger (Taney, C.J.); at 399–454 (19 How.) 60 U.S. “ concurring); collegiality and mutual respect is mutual and collegiality separate The Justices’ nine century. nineteenth decision of the engendered the political controversy they opinions and Proclamation, the Emancipation Civil War, foreshadowed the post-Civil War and ratification of the and later the adoption Rights to the Bill of amendments discourse. cordial, and couched in lofty concurring); D Justice concurring 1854, a early as As were exceptions. there Court’s reasoning: the criticized pointedly E [hereinafter (Nelson, J., concurring); (Nelson, J., concurring); ABA the case was decided was decided the case 40357-aap_18-2 Sheet No. 50 Side A 06/11/2018 08:46:58 A 06/11/2018 50 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 50 Side B 06/11/2018 08:46:58 ROCESS 33 P RACTICE ANDRACTICE P 32 34 PPELLATE A . . . . . 549–50 (McLean, J., dissenting). (McLean, 549–50 OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE ELETE D OT N 60 U.S. (19 How.)60 at O , 1(D 35 at 577–78 (Curtis, J., dissenting). at 577–78 dissenting). J., (Curtis, at 626 Wayne Justice opinion by the concurring at 633 (Curtis, J., dissenting). Even ESEND R Id. Id. Id. Dred Scott pass . . . . These questions numerous, are grave and the of them required the of some me to exhibit fully importance or done either . To have more . . opinion. grounds of my less, would have been inconsistent with views my of my duty. Whatever individual claims may be founded on local circumstances, differences or sectional cannot of condition, in this . . . be recognized arrogating to the court, without which to it; and . powers not committed judicial branch . . wield. fitted to it . . . I do not think I have expressed opinion, and the reasons therefor, at my wished, upon the could have far greater length than I it necessary to on which I have found different questions his Maker, and is amenable to the laws of God and man; and laws of God to the is amenable and his Maker, man; existence. destined to an endless and he is is a citizen] declare who what exists, [to If this power within the States persons born may or be President Vice or of the United States, memberseither of House President enjoy anyoffice or anyhold of Congress, or privilege of the United States is a necessarywhereof citizenship will of Congress. depend solelymust on the qualification, During Chief Justice Taney’s later years and as the Civil years and as the Civil During Chief Justice Taney’s later 455 (Wayne, J., concurring). concurring). J., (Wayne, 455 It would certainly be a subject of regret, that It would certainly be a subject of regret, the conclusions of the court have not been assented to by all of its members, if I did not know from its history and have been that the judges rarely it has happened how my own experience constitutional questionsdecision in this unanimous upon of moment, and if our usually had made by as large a majority of them as has been case had not been on constitutional questions of importance. at at 33. 34. 35. 32. NTRIKIN was respectful, and almost apologetic, in commenting on the badly divided decision: decision: divided the badly on commenting in apologetic, almost and was respectful, Id. War approached, the tone of separate opinions shifted from the War approached, the tone of separate hostility. Justices became of respect to reflect increasing norm And Justice Curtis concluded in an almost apologetic tone, an almost in And Justice Curtis concluded separately: explaining his reasons for writing 208T still respectfully: but forcefully, wrote more Justice Curtis E 40357-aap_18-2 Sheet No. 50 Side B 06/11/2018 08:46:58 B 06/11/2018 50 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 51 Side A 06/11/2018 08:46:58 41 [t]he 36 But 37 38 , joined by three ). Hepburn Dred Scott Dred ). Munn Also during this period, dissents Also during this 40 . expressly relied on the “elaborate the “elaborate relied on expressly 39 No doubt the political impact of the No doubt the political impact 42 ) 6/4/2018 3:17 PM 209 94 U.S. 113 (1876), for example, Justice Field wrote that “ 113 (1876), 94 U.S. , ELETE . amends. XIII, XIV (overruling . amends. XIII, D ISSENT OT note 14, at 172 (discussing (discussing 172 at 14, note note 14, at 157–59 & n.130. & 157–59 at 14, note (Field, J., dissenting) (Field, J., D N ONST O C 1(D supra supra at 136 , The Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1871) (overruling Hepburn Hepburn 457 (1871) (overruling (12 Wall.) U.S. 79 Tender Cases, , The Legal ,U.S. Munn v. Illinois at 160, 161–66. 161–66. at 160, Id. ESEND , 75 U.S. at 638 (Miller,, 75 J., dissenting). R E.g. Budd v. N.Y., 143 U.S. 517, 548–49 (1892) (Brewer, J., dissenting). (Brewer, (1892) 548–49 517, U.S. N.Y., 143 Budd v. Id. E.g. By the late nineteenth century, separate opinions were no century, separate opinions By the late nineteenth After Chief Justice Taney’s death in 1864, Supreme Court Supreme death in 1864, Justice Taney’s After Chief [The majority’s] of the injustice ofwhole argument if the law, an injustice which it wholly void; and of its it ever existed will be repeated by now holding opposition to the spirit of the Constitution,too is and intangible abstract for application to courts as a ground on of justice, and is, above all, dangerous It of a court. the decision void by the legislation of Congress declare which to would authorize this court to enforce theoretical views of the genius of the government, or vague notions of the spirit of the Constitution and of abstract views. It square with those which did not void laws declaring justice, by substitutes our ideas code of judicial of policy for construction, an undefined National legislature.Constitution, ethics for the and a court of justice for the 42. 36. Kelsh, 39. 40. Kelsh, 37. 41. 38. In ISRESPECTFUL C. The Separate Opinion in a Time of Socioeconomic Turmoil Turmoil in a Time of Socioeconomic Opinion C. The Separate NTRIKIN v. Griswold, 75 U.S. (8 Wall.) 603 (1870)). The dissent in (1870)). The Wall.) 603 (8 U.S. Griswold, 75 v. Justices, was particularly strident in tone, and was perhaps among the earliest critiques of perhaps among the was in tone, and Justices, was particularly strident judicial activism: as known what is now principle upon which the opinion proceedsof the majority my is, in judgment, subversive believed to be protected by constitutionalof the rights of private property, heretofore guaranties against legislative interference, and is in with conflict the authorities cited in its support.” opinions expressing disdain for the Court’s opinions. opinions expressing a brief dissent out of the ordinary. In 1892, longer considered Brewer Justice issued by case, a highly dissenting Justices in an earlier discussions” by at the time. unusual practice amendment law, either by constitutional became occasionally earlier decisions in favor of or by the Court’s overruling dissenting viewpoints. issues of the day offered Court’s reversals on the controversial D and institution as an role Court’s the about concerned less reputations. on their individual their attention instead focused range of cases, in an expanding opinions Justices filed separate so. to express reluctance in doing even while continuing issued unapologetic separate Justices also occasionally some E Hepburn 40357-aap_18-2 Sheet No. 51 Side A 06/11/2018 08:46:58 A 06/11/2018 51 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 51 Side B 06/11/2018 08:46:58 L. 44 M. . L.J. OURT C.A. C.A. C LB ROCESS (Field, J., J., (Field, P EPPERDINE , 57 A , 57 LEXANDER see also 47 UPREME A S , 39 P HE :T RACTICE ANDRACTICE The Slaughter-House Cases The Slaughter-House . 54, 55 (Nov. 1906) (“What (“What (Nov. 1906) 55 . 54, P Yet separate opinions Yet separate opinions see generally see generally L.J. 191, 192, 195–96 (1905). 195–96 (1905). 192, L.J. 191, EV RANDEIS 46 B ALE .&R . at 929; AG . 507, 508–09 (2012) (summarizing. 507, 508–09 the Id PPELLATE , 14 Y USTICE USTICE M Evils of Dissenting Opinions Evils of Dissenting A .J R UMAN M , 32 L. J.L. & H OURNAL OF OURNAL 43 J Henry Wollman, Wollman, Henry PINIONS OF ALE ) 6/4/2018 3:17 PM O Dissenting Opinions HE ELETE note 44, at 518–19. D. The Anti-Dissent Movement Movement D. The Anti-Dissent , 24 Y D Personal and Official Authority: Turn-of-the-Century Lawyers and see also see OT Dissenting Opinions undermining the certainty and predictability of the the certainty and predictability of undermining N Mr. Justice Brandeis and the Art of Judicial Dissent O supra supra NPUBLISHED NPUBLISHED , Slaughter-House Cases, The Wall.) 36, 83 (1873) 83 U.S. (16 by 1(D U at 540; 45 Professor Urofsky calls Justice Field’s in dissent Emlin McClain, Smith, HE 200 (1957). 200 (1957). ESEND R ,T See id. See, e.g. See See Beginning in the late nineteenth century, the bar began to the bar began century, in the late nineteenth Beginning Yet some Justices of this era circulated proposed dissents primarily to influence theYet some Justices of this era circulated proposed ORK There is a class of dissenting opinions however which is well worthy of the which is well worthy There is a class of dissenting opinions however . by certain . . are marked They American bar. closest attention on the part of the peculiarities which give them permanent value. I refer to the dissenting opinions . 919, 922–23 (2012). (2012). 922–23 . 919, W 46. 43. 44. Hunter Smith, 45. 47. EV ICKEL NTRIKIN dissenting). the “first modern dissent” because “it not only contradicted of the ruling and reasoning the majority, arguments but also set out the ultimately that would be accepted as correct.” Melvin I. Urofsky, content and reasoning of opinions for for example, wrote the Court. Justice Brandeis, dissents that he fromlater withheld publication. Some commentators celebrated Supreme Court dissents: Court celebrated Supreme Some commentators B law. Second, they were antithetical to the collective nature of to the collective were antithetical law. Second, they authority role of judges. courts and the appropriate like that courts, notion democratic reflect the could also of announcingdeliberative bodies. The practice legislatures, are and transparency the said to reflect was dissenting viewpoints system. judicial valued in the American public access 210T express to Justices for minority incentive irresistible an viewpoints. dissenting dissents. to the practice of issuing express strong opposition First, by two concerns. primarily motivated The opposition was institutional weakened the judiciary’s separate opinions E R thirty-year debate about publishing dissents in courts of last resort);thirty-year debate about publishing dissents Hereschoff Bartlett, Hereschoff Bartlett, the Dissenting Opinion possible good can result from a dissenting opinion? . . . It simply litters up pages of law of . It simply litters up pages . opinion?. result from a dissenting possible good can reports with divergent views, the dissenting judge frequently posing as the champion of a lost cause.”) 74, 74 (1898) (“There never should be a dissenting opinion in a case decided by a court of by a court be a dissenting opinion in a case decided (“There never should 74, 74 (1898) the of the force permitted to weaken should be or layman lawyer judge, last resort. No all must accept as an unappealable finality.”). which court’s decision, AT 40357-aap_18-2 Sheet No. 51 Side B 06/11/2018 08:46:58 B 06/11/2018 51 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 52 Side A 06/11/2018 08:46:58 ); McClain, Plessy v. Plessy v. 690, 693 (1905) 690, 693 (1905) 347 U.S. 483, 494– 483, U.S. 347 AG B . art. 92 (adopted 1898; 1898; (adopted . art. 92 REEN ONST . L.J. 120, 120 (1894) (conceding .C A , 17 G , 17 LB public respect for courts” 52 , 50 A , Brown v. Bd. of Educ., Bd. of Educ., v. , Brown One trigger may have been have been may One trigger 49 Dissenting Opinions Dissenting dissents are “in many cases . . . unwise and injudicious”). injudicious”). and . unwise . . cases are “in many dissents ) 6/4/2018 3:17 PM 211 . overruled in part overruled in But by 1921, the opposition movement lost opposition movement But by 1921, the Louisiana amended its constitution to prohibit its constitution Louisiana amended 53 ELETE D ISSENT note 44, at 513 & n.36 (citing L 513 & 44, at note Great Dissenting Opinions Great Dissenting OT note 44, at 511–12. 511–12. at 44, note D N O which reaffirmed the “separate but equal” doctrine but equal” doctrine the “separate which reaffirmed Plessy, Plessy, supra 1(D supra 50 , , William A. Bowen, at 543, 549–51. 549–51. at 543, at 562 (Harlan, J., dissenting). And Justice Harlan had more to say: say: more to had Justice Harlan And dissenting). J., (Harlan, at 562 ESEND In dissent, Justice Harlan pointedly challenged the Harlan pointedly challenged In dissent, Justice R Legal periodicals and general-interest newspapers alike newspapers alike general-interest periodicals and Legal E.g. 163 U.S. 537 (1896), 537 (1896), 163 U.S. Id. Id. The arbitrary separation ofThe arbitrary separation basis of race citizens on the of servitude highway is a badge public on a are while they wholly with the inconsistent civil freedom and the equality before the law established byIt cannot be the Constitution. legal grounds. justified upon any Perhaps as a result of the legal uncertainty associated with with associated uncertainty the legal result of as a Perhaps 51 note 47, at 198 (noting that 198 (noting that 47, at note 48 surely come from state legislation regulating the enjoyment of civil rights upon the enjoyment state legislation regulating surely come from all other our people above by enjoyed We boast of the freedom the basis of race. peoples. But it is difficult to reconcile that boast withwhich, a state of the law practically, puts the brand of servitude and degradation upon a large class of our thin disguise of “equal” The the law. fellow citizens, our equals before will not mislead anyone, nor railroad coaches accommodations for passengers in done. this day wrong atone for the If evils will result from the commingling of the two highways races upon public infinitely less than those that will will be established for the benefit of all, they delivered by members of the Supreme Court of the questionsUnited States upon of constitutional law. 48. 50. 51. 53. Smith, 49. Smith, 52. (1954). ISRESPECTFUL NTRIKIN (calling dissents that injured “ “judicial mistakes” nevertheless that active practitioner “[t]he is chiefly concerned with the law as it is littledeclared by the majority of a court, and pays heed to a shrill or feeble shriek as to to be”) ought what it might or 95 Ferguson Court’s reasoning: Soon after opinions. minority of the a sign viewed as to be came dissent force as judicial D with the unpopular increasingly became opinions, they separate bar. question was frequently and the for and against, took positions at bar meetings. debated requiring segregated railway Louisiana statute by upholding a cars. E Id. Hampton L. Carson, rescinded 1921)). rescinded 1921)). supra 40357-aap_18-2 Sheet No. 52 Side A 06/11/2018 08:46:58 A 06/11/2018 52 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 52 Side B 06/11/2018 08:46:58 60 OF .L. note J. INN ROCESS supra P XFORD https://www , 85 M No fan of The canon The canon 56 471, 481 (1977) 471, 481 (1977) 20 O 58 note 47, at 199. But But at 199. note 47, 50 (1973). ] available at supra RACTICE ANDRACTICE UARTERLY ONDUCT P C .Q detailed discussion of judicial detailed discussion of judicial OL But it discouraged courts But it discouraged P 1924 Canons 59 Institutional Disunity, the Judges’ Bill UDICIAL J PPELLATE . (reviewing the history J. 271, 273 (2007) A The Supreme Court Opinion as Institutional Opinion as Institutional Court Supreme The The Federal Judiciary and the ABA Model Judiciary and the ABA Model Federal The 30 W. YS S , . ODE OF rather than “a pernicious, private “a pernicious, than rather C , at Canon 19 (1924), (1924), 19 , at Canon 54 USTICE OURNAL OF OURNAL OTES TO , 28 J J N ) 6/4/2018 3:17 PM S ’ HE ELETE note 47, at 193–94 (describing written opinions’ essential (describing functionnote 47, at 193–94 D OT note 44, at 538. As early as 1905, some considered dissents “not only considered dissents as 1905, some early As note 44, at 538. Dissents in Courts of Last Resort: Tragic Choices? Choices? Last Resort: Tragic in Courts of Dissents N EPORTER O 55 supra ,R E. The Rise of Consensus and Acquiescence and Acquiescence of Consensus E. The Rise supra 1(D he urged restraint by dissenting Justices, promoting by dissenting Justices, promoting he urged restraint 221, 244 (2000); Robert Post, (2000); 221, 244 as neither being helpful nor, for the most part, matters of ethical conduct.” E. as neither 57 HODE ESEND T R Id. Stephen C. Halpern & Kenneth N. Vines, Vines, N. & Kenneth Halpern Stephen C. ABA Canons of Judicial Ethics of Canons ABA TUDIES Chief Justice Taft chaired the commission that drafted the that drafted the commission Taft chaired Chief Justice -revision committee considered Canon 19’s “ . . 1267, 1284 & n.55, 1344–45, 1346, 1348, 1356 (2001) (describing Court’s 1348, 1356 (2001) 1346, & n.55, 1344–45, . 1267, 1284 .S 58. John Alder, 60. 54. McClain, 57 59. 55. Smith, 56. & Avern Cohn, Lievense Andrew J. AYNE EV EG NTRIKIN involvement in drafting Canon 19 as reflecting norm of consensus in the 1920s and noting 1920s the in consensus norm of as reflecting 19 Canon involvement in drafting ABA’s was substantially revised). The Code the when until 1972, 19 survived that Canon Code opinions . . . as guiding others on force and effect of court rulings on facts presented); Smith, and the Role of the U.S. Supreme Court and the Role of the U.S. Supreme of the ABA Canons of Judicial Ethics). Ethics). of Judicial ABA Canons of the R (observing that the Court’s marked increase in dissenting opinions began while Taft was was in dissenting(observing that the Court’s marked increase opinions began while Taft Chief Justice, “despite his strong antipathy to dissent” and his tradition of discouraging institutional unity”) of dissents “for the sake L ABA’s first code of judicial conduct, issued in 1924. ABA’s first code dissents, Opinions.” “Judicial 19 titled the addition of Canon confidence in “promotes opinion a written acknowledged that contribute useful integrity and may [the judge’s] intellectual law.” the growth of the to precedent 212T adaptability law’s common indulgence.” judges to issuing separate opinions, urging of last resort from of solidarity and self-restraint to promote exercise “effort decision.” consequent influence of judicial conclusion and the E W .americanbar.org/content/dam/aba/administrative/professional_responsibility/pic_migrated/ .americanbar.org/content/dam/aba/administrative/professional_responsibility/pic_migrated/ [hereinafter (1924) 1924_canons.authcheckdam.pdf Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court in the Taft and Decisionmaking Practice: Dissent, Legal Scholarship, 44, at 538. 44, at 538. Code: The Parting of the Ways the potential for even then: “The writer of the dissent has a decided obvious abuse was andadvantage in that his work is in the main critical destructive rather than constructive.” Id. proper, but necessary” in some cases and that suppressing likely “obstruct dissent would McClain, of the law.” development safe and harmonious . the . . 40357-aap_18-2 Sheet No. 52 Side B 06/11/2018 08:46:58 B 06/11/2018 52 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 53 Side A 06/11/2018 08:46:58 65 66 supra 62 61 No longer 67 Halpern & Vines, Halpern never applied to never applied to See . Shea v. Judicial Standards Judicial v. . Shea The Court itself had had The Court itself ex rel 63 Id. at 4 (“Indeed, the Act was an effort by State id. The Supreme Court Under the Judiciary Act Court Under the The Supreme note 57, at 472. The Judiciary Act of 1925 is Act of 1925 is Judiciary The note 57, at 472. supra supra note 64, at 15 (“Its practice may well be characterized 794–95 (describing cases). supra ) 6/4/2018 3:17 PM 64 213 . 1, 1 (1928); see also 1 (1928); . 1, ELETE EV D note 19, at note ISSENT ABA Canons of Judicial Ethics ABA Canons of OT D N .L.R O supra supra 1(D ARV at 15–18 (including tables that show distribution of opinions). show (including tables that at 15–18 at 1–3; Halpern & Vines, at 1–3; Halpern ESEND , 643 P.2d 210, 223 (Mont. 1982). The Montana court declined (Mont. 1982). The Montana 210, 223 to sanction a , 643 P.2d judge R , 42 H Id. Id. Id. [a] judge should not yield to pride of opinion or value more opinion or value yield to pride of more should not judge [a] a court to that of than reputation individual his highly should be loyal.which he in case of conscientiousExcept principle,dissenting of opinion on fundamental difference discouraged in courts of last resort.opinions should be Another major event probably mitigated the influence of event probably mitigated Another major cases eliminated the Act essentially few exceptions, With 63. Sunstein, 64. Felix Frankfurter & James M. Landis, 61. 65. 62.was 19 to cite Canon few cases One of the 66. Frankfurter & Landis, 67. ISRESPECTFUL NTRIKIN the Court to cut the coat of jurisdiction according to the cloth of the time and energy of the to the cloth of the time and energy the Court to cut the coat of jurisdiction according nine Justices.”). bound to resolve routine appeals, the Court accepted cases much cases much appeals, the Court accepted bound to resolve routine or a justice, long as a that “[a]s dissent, concluding a for using “intemperate” language in resort to profane,. does not good morals, vulgar or insulting language that offends . . judge ‘misconduct in office.’” considered it may hardly be Canon 19. The Judiciary Act of 1925 significantly altered the Judiciary Act of 1925 significantly Canon 19. The time more Court’s docket and generated nature of the Supreme separate opinions. for Justices to write growth in its to enact the bill “to cope with the urged Congress to for issues appropriate its energies to conserve business and Bench.” the Supreme and granted it was mandatory over which the Court’s review through writs of certiorari. authority to control its own docket practice, Court’s in the were entrenched dissents By this time, allowed the Justices sufficient time to and the statutory changes deliberate over their dissents, which prepare, circulate, and opinions.” as majority labor “entail[ed] as much D 19 noted Canon dissent, the Scaliaesque anticipating Perhaps that Ironically, the rarely. Canon 19 has been cited only federal judges, and E of 1925 generally considered a watershed in the history of Supreme Court jurisprudence, not only not jurisprudence, Court in the history of Supreme generally considered a watershed the cases it decided, discretion over the nature of considerable Court because it gave the but also because it substantially reduced the Court’s caseload. Comm’n note 57, 482–83. at as one of the settled traditions of the Court.”). 40357-aap_18-2 Sheet No. 53 Side A 06/11/2018 08:46:58 A 06/11/2018 53 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 53 Side B 06/11/2018 08:46:58 70 TS :I ROCESS P TATES S Id. NITED 68 (1928). 68 (1928). U especially during especially RACTICE ANDRACTICE 68 P OURT OF THE NTERPRETATION I C N PPELLATE A —A UPREME S Read in proper context, his Read in proper HE 71 ,T CHIEVEMENTS OURNAL OF OURNAL J A ) 6/4/2018 3:17 PM 72 UGHES at 64–70 (discussing opinions in general). (discussing opinions in general). at 64–70 HE H ELETE D OT N VANS O E ETHODS AND But that lofty, often-quoted passage is almost often-quoted passage is almost But that lofty, see also id. 69 1(D ,M at 67. “Undoubtedly, they do. When unanimity can be obtained without sacrificewithout can be obtained When unanimity they do. at 67. “Undoubtedly, at 67–68. at 67–68. at 70; at 70; ESEND HARLES R Id. Id. Id. Id. and a judge may be a strong judge without being an being be a strong judge without may and a judge distressing on any person. Nothing is more impossible captious, impatient, of a bench than the exhibition querulous spirit. [t]his does not mean that a judge should be swift to dissent,judge should that a does not mean [t]his of or that he should dissent for the sake or self-exploitation because of a lack of that capacity for cooperation which is of the essence of any action, whether judicial or group otherwise. cantankerousness Independence does not mean His published lectures certainly reflect that Justice Hughes His published lectures certainly In 1928, Charles Evans Hughes—then a former Justice of Justice a former Hughes—then Charles Evans In 1928, 68. 71. 72. 70. 69. C OUNDATION NTRIKIN perspective on dissents was more equivocal than has generally perspective on dissents was more been reported. separate opinions. After noting even in valued judicial civility, on the “character and reputation rests that a court’s out that independence of its judges,” he pointed F always taken out of context. While Justice Hughes generally Justice Hughes generally of context. While always taken out controversies,” opinions, at least in “important valued minority force of the dissents “detract from the he conceded that judgment.” [majority’s] 214T issues, challenging to present likely more E socioeconomic era. The controversial New Deal the and after more prompted cases understandably in these issues raised Justices. among disagreement Chief be appointed would soon Court who the Supreme University. a series of lectures at Columbia Justice—delivered the dissent’s appeal about statement famous They included his of a future the intelligence to the law, of spirit “to the brooding correct the error into possibly decision may day, when a later have been the court to judge believes which the dissenting betrayed.” of conviction, it strongly commends the decision to public confidence.” confidence.” public the decision to commends of conviction, it strongly 40357-aap_18-2 Sheet No. 53 Side B 06/11/2018 08:46:58 B 06/11/2018 53 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 54 Side A 06/11/2018 08:46:58 note 19, note supra at 793. Justices at 793. Justices See id. 74 note 19, at 789–90. Stone note 19, at 789–90. Stone . Justice Frankfurter’s judicial . Justice Id supra supra 76 ) 6/4/2018 3:17 PM 215 note 14, at 177–79; Sunstein, ELETE D note 19, atnote 789. note 19, at 789–90. 789–90. 19, at note ISSENT OT D N supra supra O note 9, at 232. 232. note 9, at supra supra supra But his leadership was not the only reason for the was not the only reason for But his leadership 1(D Kelsh, supra 75 at 775 & n.30. He nominated another in 1943 to replace one of those eight, who He nominated another at 775 & n.30. , Chief Justice Stone did not believe he was empowered to empowered not believe he was Stone did Chief Justice ESEND R F. (Mostly) Respectful Dissent on the Roosevelt Court on the Roosevelt Dissent Respectful F. (Mostly) 73 See Id. Before 1947, official case reports identified by name only identified by name Before 1947, official case reports After 1941, when Harlan Fiske Stone was appointed Chief appointed Chief Fiske Stone was when Harlan After 1941, innovations internal administrative Chief Justice Stone’s President Roosevelt’s appointment of academics, including Felix Frankfurter and and appointment of academics, including Felix Frankfurter President Roosevelt’s As his dream of leading the Court slipped away, Frankfurter grew nastier and hisAs his dream of away, Frankfurter leading the Court slipped temper shorter. The papers of the [J]ustices who served with him are littered with notes from Frankfurter accusing them of everything from stupidity to the his diary, inability he said behind their backs, and in to understand the law; what further. much usually went 74. 73. Sunstein, 75. Sunstein, 76. ISRESPECTFUL ROFSKY NTRIKIN himself dissented more frequently than any previous Chief Justice. Sunstein, himself dissented more frequently than any previous at 790. at 790. became less frequent and draft opinions began circulating opinions began and draft less frequent became (and personally the Thus, Justices became Justices. among views.” is probably Much of the change consensus. in decline the during significant turnover the Court’s attributable to President Between 1937 and 1941 alone, Roosevelt years. eight new Justices. Roosevelt nominated opinion or any separate the Justice who authored the Court’s asked to be identified opinion, unless another Justice specifically of every matter once the front with a particular opinion. But Justice’s position, silent acquiescence opinion identified each D ended at a remarkable norm the Court’s consensus Justice, pace. with the majority. publicly disagreeing Justices from discourage of thoughtful dissents were the natural result In fact, he believed on controversial issues. debate and deliberation of the Court into nine “separate the inner workings transformed their own individual Justices elaborating law offices, with E brethren also disliked his “pedantic” dissents and “condescending” attitude. One Court brethren also disliked and “condescending” his “pedantic” dissents scholar concluded, U Frankfurter and Douglas both had “strong personalities” “strong and “had not been fully socializedFrankfurter and Douglas both had prized a norm of consensus.” that into a judicial culture resigned after two years to serve in the Roosevelt administration.the Roosevelt resigned after two years to serve in may also haveWilliam O. Douglas, shifted Court’s the internal dynamic robust toward the disagreements that sometimes characterize law faculty meetings. 40357-aap_18-2 Sheet No. 54 Side A 06/11/2018 08:46:58 A 06/11/2018 54 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 54 Side B 06/11/2018 08:46:58 to ROCESS Brown Dennis J. J. Dennis P Bates v. Loving v. . 741, 749–50 (2004) (2004) 741, 749–50 . and 84 The Rule of Law and the and Rule of Law The EV but also , RACTICE ANDRACTICE Brown v. Board of P 78 .L.R Brown CH S at 802. PPELLATE Roviaro v. United States, 353 U.S. 53, 71 53, 353 U.S. v. United States, Roviaro Under Chief Justice Warren, Warren, Under Chief Justice A 81 . 1305, 1317–18 (2011) (crediting Justice (2011) 1317–18 . 1305, , Stephen Ellmann, EV see also id. also see Compare Compare See, e.g. .L.R City of Detroit v. Murray Corp. of Am., 355 U.S. 489, U.S. Am., 355 of Corp. City of Detroit v. Murray note 31, at 795–97 (pointedly critiquing dissents of note 31, at 795–97 (pointedly Thomas v. Osborn, 60 U.S. 22, 56 (1856) (Taney, C.J., C.J., (1856) (Taney, 56 22, U.S. 60 Osborn, Thomas v. Heart of Atlanta Motel, Inc. v. United Motel, Inc. v. United Heart of Atlanta Brown, 49 N.Y.L. 49 Brown, From Consensus to Collegiality:of The Origins the OURNAL OF OURNAL ARV J with ) 6/4/2018 3:17 PM See 82 , HE at 1318 & n.87. Yet Chief Justice Taney was apparently the first was Justice Taney Yet Chief & n.87. at 1318 supra Justice Jesse W. Carter). Justice ELETE D note 19, atnote 797; , 124 H OT N O And after 1957, dissenters adopted the customary dissenters adopted the customary And after 1957, , Pound, , Pound, , supra , supra see also id. In addition, the jurisprudential shift away from shift the jurisprudential In addition, 80 In 1954, soon after Earl Warren became Chief became Warren after Earl soon 1954, In g. 1(D . . 34 (1979). L.J. 1, New York Times Co. v. Sullivan 77 Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948– Court, Decisionmaking in the Supreme and Desegregation: Unanimity 85 79 . EO at 798. at 798. 83 ESEND , R Id. 379 U.S. 241 (1964) (applying Civil Rights Act to private businesses). to private Rights Act Civil (applying 241 (1964) 379 U.S. See, e By the mid-twentieth century, some dissents had become dissents had become century, some By the mid-twentieth , 68 G , 68 80.Court’s unanimity in credited the have Scholars 347 U.S. 483 (1954). 78. 83. 84. press). (reaffirming freedom of the 254 (1964) 376 U.S. 85. marriage). banning interracial statutes (striking down 1 (1967) 388 U.S. 77. Sunstein 81. Chris Kulawik, Note, 82. association). of (addressing freedom 516 (1960) 361 U.S. 79. G. The Norm of Consensus and Respect in the Civil Rights Era G. The Norm Era Rights and Respect in the Civil of Consensus NTRIKIN (recognizing unanimity as Chief Justice Warren’s “signal achievement”); “signal achievement”); as Chief Justice Warren’s (recognizing unanimity Hutchinson, 1958 “Respectful” Dissent States Virginia more strident, and scholars called for more civility and more and scholars called for more strident, restraint. decided unanimously Justice, the Court Education. dissent.” tone of the “respectful 216T respective their for accountable politically) even perhaps separate frequent more have prompted may which positions, opinions. the influenced likely period this during to realism formalism opinions. minority frequency of pattern and consensus—and a surprising degree of the Court demonstrated controversial of that era’s many unanimity—in even occasional only civil rights cases, including not E City of Little Rock 511 (1958) (Whittaker, J., dissenting). J., (Whittaker, 511 (1958) California Supreme Court California Supreme leadership. Chief Justice Warren’s in Unanimity Achievement of (1957) (Clark, J., dissenting), Whittaker with using the phrase that has since become the customary language of collegial the customary language of collegial become Whittaker with using the phrase that has since disagreement); Justice to adopt the phrase. first appeared in a the phrase it before other dissenting Justices recited dissenting). And dissent authored by Justice Whittaker. 40357-aap_18-2 Sheet No. 54 Side B 06/11/2018 08:46:58 B 06/11/2018 54 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 55 Side A 06/11/2018 08:46:58 . . Id. EV EV The The . L. R , 410 U.S. .L.R infra INN EFFERSON 89 J , 101 M , 101 Doe v. Bolton , Ronald J. Placone, dissent: dissent: , 33 T. Roe See, e.g. See, . is one of the most widely read and Roe Roe Roe 88 ”). , text accompanying notes 137–59, 137–59, notes , text accompanying . . . . . See, e.g. certainly among the most divisive cases divisive the most among certainly Then-Justice Rehnquist, for example, for example, Rehnquist, Then-Justice 86 ) 6/4/2018 3:17 PM 87 217 , Law as Palimpsest: Conceptualizing Contingency in Judicial Conceptualizing as Palimpsest: Law , but he too adopted a nominally respectful tone: nominally respectful tone: a adopted he too , but twentieth century twentieth Remembering Justice Antonin Scalia Justice Antonin Remembering . 121, 144 (2009) (“ . 121, Roe EV ELETE D ISSENT OT D N .L.R O LA 1(D opinions of the opinions of the Bret D. Asbury, Bret D. 12, 12 (2016) (surmising that Justice Scalia was confirmed in part because he Roe v. Wade , , 410 U.S. at 171 (Rehnquist, J., dissenting). Justice Rehnquist ended his dissent (Rehnquist, J., dissenting). at 171 , 410 U.S. ESEND , 61 A , 61 R E.g. Roe question, and therefore dissent. question, and The Court’s opinion brings to the decision of this troubling to the decision opinion brings The Court’s fact extensive historical both question of and a wealth legal the opinion thus commands scholarship. While respect, my with in fundamental disagreement nonetheless I find myself statute in Texas that invalidate the those parts of it But once Justice Scalia arrived in 1986, the tone of Scalia arrived in 1986, the But once Justice The tradition of respect continued for almost thirty years, thirty for almost continued of respect tradition The In a sensitive area such as this, involving as it does issues over which reasonable does issues over which In a sensitive area such as this, involving as it of its exercise the Court’s accept cannot I men may easily and heatedly differ, barrier to state efforts to a constitutional of choice by interposing clear power protect human life and by investing and doctors with the constitutionally women for the most part, should be left withprotected right to it. This issue, exterminate to govern their have devised the people and to the political processes the people affairs. With all due respect, in the language or history of the find nothing I dissent. I judicial As an exercise of raw . . . Constitution to support the Court’s judgments. the Court perhaps has authority to do what it does today; but power, in my view of the power of judicial exercise its judgment is an improvident and extravagant review that the Constitution extends to this Court. at 178. Justice White issued a more strongly worded dissent in strongly worded more White issued a Justice at 178. at 221–22 (White & Rehnquist, JJ., dissenting). Others have reached similar Others have JJ., dissenting). (White & Rehnquist, at 221–22 86. 113 (1973). 410 U.S. 87. 88. 89. Alan B. Morrison, ISRESPECTFUL EADNOTES NTRIKIN had “no record that would suggest how he would vote in controversial cases before the vote in controversial would he how suggest would record that had “no Judge Scalia reasonably well when many who thought they knew Supreme Court”). “[T]o expected.” they had Justice than different be a much to turned out he he was appointed, he could be that of the opinions he wrote as a circuit judge suggested at 14. But some irascible, impatient, aggressive. and H 181, 190–91 (2011). 181, 190–91 Supreme Court discourse would never be the same. Court discourse Supreme Opinions controversial D even in tone in his a polite and deferential adopted E era. modern of the United States Supreme Court and Abortion: A Decline in Civility United States Supreme Court Id. conclusions about the respectful separate opinions in with the then-customary phrase: “For all of the foregoing reasons, I respectfully dissent.” the foregoing reasons, I phrase: “For all of with the then-customary Id. 179 (1973), decided with decided 179 (1973), 40357-aap_18-2 Sheet No. 55 Side A 06/11/2018 08:46:58 A 06/11/2018 55 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 55 Side B 06/11/2018 08:46:58 ISTORY ROCESS .H P And he AG 93 facilitated M note 19, at 806–07 at 806–07 note 19, , OAH Micah Schwartzman, Micah Schwartzman, Brown EGACY supra supra L RACTICE ANDRACTICE P but cf. Dissents And he agreedthe that Sunstein, 92 cf. PPELLATE HETORICAL A R Antonin Scalia, S 90 note 19, at 816; note 19, ’ 91 . 987, 1019 (2008) (defending judicial “candor” and “candor” (2008) (defending judicial . 987, 1019 see also supra CALIA EV OURNAL OF OURNAL J S ) 6/4/2018 3:17 PM . 1371, 1415 (1995). 1415 (1995). . 1371, HE .L.R The Rhetoric of Results and the Results of Rhetoric: Judicial Rhetoric of Results and the Results of Rhetoric: The A EV ELETE D note 69, at 68. 68. at note 69, OT note 5, at 35; USTICE note 5, at 38. note 5, at .L.R N O , 94 V HI supra note 4 and accompanying text; accompanying 4 and note , II. J supra supra 1(D at 39. Justice Scalia’s writing also presaged the political at 39. Justice Scalia’s writing reactionalso presaged to news of his ESEND UGHES , 62 U., 62 C R Id. We write whatWe write others,more than are, and perhaps, we what they write. judges are By the end of his life, Justice Scalia’s propensity to dissent life, Justice Scalia’s propensity By the end of his Were Justice Scalia’s separate opinions motivated by a by motivated separate opinions Scalia’s Were Justice 94 see supra see supra ; 93. Scalia, 94. 90. Patricia M. Wald, 92. Scalia, 91. H NTRIKIN Writings “sincerity” but lamenting judicial critiques of one another “in disrespectful terms”). “in disrespectful of one another “sincerity” but lamenting judicial critiques unanimity of the Court’s “epochal decision” in of the Court’s “epochal decision” unanimity charged political controversy its acceptance during the highly He conceded that separate surrounding school desegregation. law. than clarify” the opinions can “obfuscate rather was notably greater than might have been expected from his from have been expected than might was notably greater acknowledged in a 1994 federal bench. He early years on the foremostarticle that “[t]he external consequence and undeniable opinion is to destroy the of a separate dissenting or concurring of unity and solidarity.” appearance lead to “a sort of vote-counting recognized that they may on significant issues of approach” in predicting Court decisions law. 218T of the law, the appeal to the “brooding spirit genuine desire to “swift to dissent,” a future day”? Or was he too of intelligence for lack of for the sake of self-exploitation” choosing to “dissent cooperation”?“capacity for he, in the end, just a Was “captious, “impossible person” with a and “cantankerous” spirit”? querulous impatient, E 18 (1998) (restating this conviction in a slightly edited version of 1994 article). Indeed, “if edited version of 1994 article). Indeed, “if 18 (1998) (restating this conviction in a slightly the Court is persistently fragmented, occurs along political and if the fragmentation people will lose faith in grounds, some it—especially if their views are preferred consistently rejected.” Sunstein, Judicial Sincerity death: “Whenever one of the death: “Whenever five Justices in a constitutional5–4 decision has been overruled.” decision astute counsel must think, of getting that replaced there is a chance, Id. (arguing that the credibility and legitimacy divided decision likely have more to of a deeply than vote-counting). with public predilections do 40357-aap_18-2 Sheet No. 55 Side B 06/11/2018 08:46:58 B 06/11/2018 55 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 56 Side A 06/11/2018 08:46:58 99 103 In In , https: 95 ATION N http://www.nytimes http://www.nytimes “hostil[e],” , 101 JUDICATURE 54 53, 102 . (Oct. 6, 2013), nymag.com/ . (Oct. 6, 2013), nymag.com/ AG available at note 2, at 215, 224–27 (listing215, 224–27 note 2, at M note 6, at 85 (“Sarcasm is indeed at 85 note 6, supra supra supra supra , N.Y. Scalia Lands at Top of Sarcasm Index of belligerent, 101 By the end of his judicial career, his By the end of his judicial career, 96 97 , at A10 (Jan. 19, 2015), A10 (Jan. 19, 2015), , at PGA Tour, Inc. v. Martin, 532 U.S. 661, 700 (2001) (Scalia (Scalia 700 (2001) 661, U.S. Martin, 532 v. Inc. Tour, PGA Adam Liptak, ) 6/4/2018 3:17 PM 219 What’s the Point of a Supreme Court Dissent? of a Supreme What’s the Point note 12, at 399 (“No justice in Supreme Court history has history justice in Supreme Court 399 (“No note 12, at ); IMES ELETE Why We Read the Scalia Opinion First (citing D note 99. 99. note supra supra ISSENT OT note 5, at 35. note 5, at D N , N.Y. T notes 157–225 and accompanying text. Justice Scalia himself once text. accompanying notes 157–225 and O In Conversation: Antonin Scalia supra supra “sarcastic and divisive with a cutting writing style,” “sarcastic and divisive with a cutting supra 1(D “corrosive,” 98 at 33. Yet Justice Scalia’s concurring opinions often appeared to do just that. just that. do to appeared often opinions Scalia’s concurring Justice Yet at 33. 100 ESEND R Id. See infra Yet after serving on the federal bench for less than a on the federal bench for less Yet after serving On the other hand, Justice Scalia also apparently believed believed apparently also Justice Scalia hand, other On the 95. Scalia, 96. 100. Liptak, 101. Michael O’Donnell, 99. Chemerinsky, 98. Paul D. Clement, D. Clement, 98. Paul 97. ISRESPECTFUL NTRIKIN Justices. Shocking .com/2015/01/20/us/scalia-lands-at-top-of-sarcasm-index-of-justices-shocking.html?_r=0. .com/2015/01/20/us/scalia-lands-at-top-of-sarcasm-index-of-justices-shocking.html?_r=0. //www.thenation.com/article/whats-the-point-of-a-supreme-court-dissent/ 2016) (Jan. 21, separate opinions had been variously described as “harshly separate opinions had been variously worded,” concluding that the merits of separate opinions outweigh their outweigh opinions of separate the merits concluding that the perspective thoughts mirrored Scalia’s Justice disadvantages, He even Justice Hughes. earlier by Chief espoused decades “only to say the concurring opinions issued acknowledged that or worse still, to has done, thing better than the court same feelings on the of the concurring judge’s display the intensity even counsel against might to an abuse that issue” amount opinions. issuing separate for his earned a reputation already Scalia had decade, Justice biting, acerbic dissents. “acid,” D and by its author Court, signed opinion for the that an Court’s that the dissents, demonstrates by signed accompanied minds,” and thoughtful “independent the product of work is to consensus merely judges who value the product of rather than institution.’” of the ‘good supposed “some achieve E & Thomas, JJ., dissenting) & Thomas, JJ., seventy-five sarcastic Scalia opinions); Kapgan, seventy-five sarcastic Scalia opinions); Kapgan, par for Scalia’s course.” (2017). news/features/Antonin-scalia-2013f-10/. In one of his last dissents, Justice Scalia attempted his of In one news/features/Antonin-scalia-2013f-10/. and thought of silly extravagances, even “extravagances, to rationalize the use of while chastising the or dissenting opinions, majority for doing so expression” in concurring Ct. 2584, S. U.S. ___, 135 ___ Hodges, v. in “the official opinion Court.” Obergefell of the JJ., dissenting). & Thomas, (Scalia 2630 (2015) conceded that his tone could be is sometimes “sharp.” But “sharpness needed to in my dissents.” I believe a thing is. Especially demonstrate how much of a departure Jennifer Senior, consistently written with the sarcasm of Justice Scalia. No doubt, this makes his opinions among the most entertaining to Hasen, read.”); 40357-aap_18-2 Sheet No. 56 Side A 06/11/2018 08:46:58 A 06/11/2018 56 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 56 Side B 06/11/2018 08:46:58 . ., 95 R 111 CON ASH . ,J I , May . note 2, W ROCESS EX . 221, 229 outside P Justice “ ODAY , L RISBIN EV supra supra T 117 and even and even note 102, at 13 note 102, at 107 A. B .L.R , USA Hasen, Hasen, supra 113 MEND “strident and and “strident A ICHARD ICHARD 1257, 1261 (2016). 1261 1257, . 1105, 1111 (2008) (noting . 1105, RACTICE ANDRACTICE 108 277 (1997)). see also : As a Justice, Scalia Antonin P “brutal,” EV IRST THICS 106 E L. R EVIVAL , 15 F R note 101; 101; note at while noting 1110, the different EGAL EGAL AYNE a “torrent of outrage,” a “torrent PPELLATE id. at 1130. at 1130. D.C. v. Heller v. D.C. A .J.L 110 supra Id. “vituperative,” 86 (“‘[A]t times [Justice Scalia’s rejection86 (“‘[A]t of , 54 W EO 112 dissent)). Professor Rubin acknowledged Justice Justice acknowledged dissent)). Professor Rubin note 6, at 74 (describing Justice Scalia’s prosenote 6, at as as to enlighten readers. as to enlighten A Man of Genius Makes No Mistakes: Judicial Makes No Man of Genius A “degrading,” (June 26, 2015), http://www.slate.com/blogs/lexicon 2015), http://www.slate.com/blogs/lexicon (June 26, ONSERVATIVE , 29 G , 29 116 C 105 Heller supra Collegiality Among U.S. Supreme Court Justices? Court Supreme U.S. Collegiality Among note 6, at Note, OURNAL OF OURNAL ). J ) 6/4/2018 3:17 PM Justice Scalia's Legacies ANGUAGE HE Question Regarding Question Regarding supra R-E-S-P-E-C-T, Find Out What It Means to Scalia It Find Out What R-E-S-P-E-C-T, L Kapgan, Kapgan, ELETE Why We Should Ignore Justice Scalia’s Nasty Zingers, Ignore Justice Should Why We note 2, at 216 (opining that Justice Scalia’s sarcasm “gain[s] 2, at 216 (opining note D note 106; O’Donnell, O’Donnell, 106; note Supreme Court Justices Need to Regain Civility Supreme note 2, at 62 (referring specifically Scalia’s June 2015 to Justice “bold vitriol,” “bold note 103, at 1129 n.144. at 1129 103, note note 90, at 1383. 1383. at 90, note 30. at 10, note note 90, at 1416. at 90, note OT Obergefell BOUT CALIA AND THE N S 109 A O Kapgan, Kapgan, “invective,” supra supra supra and and and entertain supra supra supra supra supra supra supra supra They were perhaps written as much to garner to garner written as much were perhaps They 1(D LOG 104 12, 13 (July–Aug. 2011) (“During his nearly two decades on the Rehnquist on the Rehnquist his nearly two decades (“During 2011) 12, 13 (July–Aug. 115 114 at 1130. at 1130. King NTONIN ESEND A :AB Porto, Rubin, Id. Wald, Thomas Przybylowski, Thomas Przybylowski, Michael J. Gerhardt, Michael J. Gerhardt, see also R (July 31, 2015), https://www.washingtonpost.com/opinions/justice-scalias-appalling- (July 31, 2015), 112. Wald, 113. 114. Kravitz, 108. 109. 102. al., David A. Yalof et 104. 105. 103. Rubin, L. Edward 107. 115. Hasen, 110. Jones, 106. David Kravitz, 111. David Auerbach, ALLEY caustic,” OST NTRIKIN USTICE UDICATURE abortion rights] hasabortion rights] and turned into a torrent of abuse submerging the swelled over banks (quoting R of opinions.’” ordinarily depersonalized language several instances “hostility”of in P J V “nasty.” J articulatedScalia’s “energetically opinions,” rhetorical styles used in his dissents and his opinions for the Court. Rubin’s answer to the “injudicious.” question posed in his title was 220T “ discourse,” of judicial the boundaries contentious,” to stylish stabs,” “prone attention like Scalia’s does more rhetoric (“[C]orrosive than fray relationships on the Court; it are political stooges.”). that the justices public convinces the E at 215 (“[Justice Scalia’s] ability (and willingness) to engage in ability (and willingness) at 215 (“[Justice Scalia’s] nastiness, particularly directed at other Justices’ opinions, is unparalleled.”); Yalof et al., (quoting Tony Mauro, _valley/2015/06/26/the_surprising_history_of_the_respectful_dissent_at_the_supreme_cou rt.html; Court, Scalia cemented his reputation as a stubborn and recalcitrant character, relentlessly his reputation as a stubborn Court, Scalia cemented (footnote philosophy.” or judging with his ideology disagree attacking those who might omitted)). zingers/2015/07/31/0f5db50c-36f5-11e5-b673-1df005a0fb28_story.html?utm_term=.f5ae0 zingers/2015/07/31/0f5db50c-36f5-11e5-b673-1df005a0fb28_story.html?utm_term=.f5ae0 ff93ec0. (2017). 14, 1991, at 7A)). 7A)). at 14, 1991, attention for his ideas”); Is (a) Great, (b) Acceptable, (c) Injudicious (c) Acceptable, (b) Great, Is (a) Civility and the Ethics of the Opinion Ethics of the Civility and the dissents in 40357-aap_18-2 Sheet No. 56 Side B 06/11/2018 08:46:58 B 06/11/2018 56 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 57 Side A 06/11/2018 08:46:58 ex 4 supra His By ”Justices indeed a 118 120 Zivotofsky Zivotofsky HALLENGED Clement, C of this statutory note 101 ( note 101 see also see also MERICA supra supra ,A note 98, at 55 (“Scalia, ever sheer applesauce supra OUGLAS sheer applesauce.” he acid test of whether a word can he acid test ofcan whether a word O’Donnell, O’Donnell, 119 O. D note 5, at 42. at 42. note 5, Clement, Nat’l Cable & Telecomm’n Ass’n v. Brand X Ass’n & Telecomm’n Nat’l Cable see also ILLIAM supra supra W ”); see also ) 6/4/2018 3:17 PM 221 attention see also also see note 106 (“Scalia’s zingers add nothing of substance to his nothing of substance add (“Scalia’s zingers note 106 ELETE D note 5, at 39; tenure articles . . . .” ISSENT OT D N supra supra O supra note 5, at 42; note 1(D ESEND R supra Justice Scalia’s early writings shed no light on the reasons early writings shed no light on Justice Scalia’s Zivotofsky v. Kerry, ___ U.S. ___, 135 S. Ct. 2076, 2121 (2015). 2121 2076, Ct. S. 135 ___, U.S. ___ v. Kerry, Zivotofsky 117. separately for Perhaps he wrote Justice his own amusement. Scalia found 118. Scalia, 119. Justice Scalia, himself a former law exhibited disdain professor, for academics on 120. (2007) (Scalia, 113 Dep’t of Educ., 550 U.S. 81, Dist. No. 89 v. Zuni Pub. Sch. 116. Kravitz, ISRESPECTFUL NTRIKIN professional satisfaction in issuing separate opinions: “To be able to write an opinion solely write an opinion solely able to “To be professional satisfaction in issuing separate opinions: . to express . . the views of one’s colleagues; for oneself, without the need to accommodate or disbelief, or indignation that one believes precisely the degree of quibble, or foreboding, an unparalleled is indeed the majority’s disposition should pleasure.” engender—that Scalia, (1960) (“[T]he right to dissent is the only thing that makes life tolerable for a judge of an life tolerable for a judge makes right to dissent is the only thing that (1960) (“[T]he writing separate opinions pleasure of that the Justice Scalia confessed appellate court.”). was “the most important of all.” Scalia, the law professor, had a great feel for that audience. . . . [S]tudents confess that they always always confess that they . [S]tudents . . for that audience. a great feel professor, had the law with the Justice. always disagreed almost read the Scalia opinion first—even students who lay the question bare and opinion only would the Scalia them? Not blame who could And read.”) a fun be would it cogently, clearly and legal debate articulate one side of the more than one occasion. In one dissent he derisively declared thatmore than one occasion. In one it was “ world that the Court creates, one full of promise wonderful new for administrative-law of professors in need dissenting); J., (2005) (Scalia, 1019 967, U.S. 545 Internet Servs., rel. dissenting) (“The C.J., JJ., & Roberts, Thomas & Souter, Court’s statutory interpretation as “ interpretation Court’s statutory of “compelling—demanding say that they rarely put the Court’s prestige their accustomed to having so have become reputations.”). above their own opinions; they are there to entertain, explain or enlighten.”); not to D need to longer no might law students that surmised once Scalia because controversies about legal writings read academic of the opinions in the opposing controversies appear “[t]hose that text.” be studied from can Court itself, and Supreme opinions exhibited over the his separate civility for the decline in be might his dissents reflected what years. Occasionally, the referred to when he as acerbic wit, considered merely you could use the word in that sense at areasonably bear a particular meaning is whether United States, 529 v. Johnson look at you funny.” cocktail party without having people (Scalia, J., dissenting). 718 (2000) 694, U.S. E to keep was his desire dissents for writing motive self-professed of the development of the intellectual “at the forefront the Court legal academy, the to influence ceding if it meant law,” even only dismissively. albeit sometimes note 98, at 53 (noting that while Justice Scalia’s writing was entertaining, “it had serious At times Justice Scalia injected humor the Court and its jurisprudence”). consequences for into his defused some opinions, which occasionally of his intemperance. Of his textualist for example, he once wrote that “t jurisprudence, 40357-aap_18-2 Sheet No. 57 Side A 06/11/2018 08:46:58 A 06/11/2018 57 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 57 Side B 06/11/2018 08:46:58 , 28 , 28 . 783 . 907 . 907 EV EV ROCESS Justice . 849, 864 P EV .L.R .L.R 123 had long had CH ICH 121 .L.R INN C , 115 M , 115 Political Advocacy on the Advocacy on Political RACTICE ANDRACTICE P In Memory of Justice Antonin , 51 N.Y.L., 51 S 124 , 57 U. Justice Scalia and Justice the Art of Rhetoric PPELLATE A King v. Burwell, ___ U.S. ___, 135 S. Ct. 135 ___, U.S. ___ King v. Burwell, note 12 (chronicling some of Justice Scalia’s note 12 note 122, at 908. 908. at 122, note see also supra supra The Tragedy of Justice Scalia Justice of Tragedy The note 12, at 399–400 (citing examples and note 12, at 399–400 (citing concluding OURNAL OF OURNAL J note 107; Robert G. Gibson, .” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 U.S. 457, .” Whitman v. Am. Trucking Ass’ns, 531 ) 6/4/2018 3:17 PM supra https://www.heritage.org/courts/report/law-clerks-reflections- Originalism: The Lesser Evil note 97, and accompanying text. One might wonder whether whether might wonder One text. accompanying and note 97, HE ELETE supra 16 (May 2016); Stephen A. Newman, Newman, A. 2016); Stephen (May 16 Noel J. Francisco, A Law Clerk’s Reflections on Justice Scalia Clerk’s A Law Francisco, Noel J. D supra supra OT note 10; Jeffrey M. Shaman, note 10; Jeffrey M. Shaman, RIEF N mouseholes . 287 (2012). B O with some urging with to change his ways, him some available at in supra Gerhardt, 1(D Mitchell N. Berman, 122 Senior, , Antonin Scalia, OMMENT ESEND See E.g. R See .C This Part traces the evolution of Justice Scalia’s rhetorical Justice Scalia’s rhetorical of the evolution This Part traces , 28 DCBA , 28 124. 123. E.g., Chemerinsky, 121.dissents. Justice Scalia issued thirteen full terms, In the last of his twenty-nine 122. ONST NTRIKIN Justice Scalia just pretended not to care. He apparently cared early in his Supreme Court apparently Justice Scalia just pretended not to care. He career. Supreme Court: The Damaging Rhetoric of Antonin Scalia Rhetoric of Antonin Damaging The Court: Supreme (1989) (anticipating that some of his dissents would eventually prevail). dissents would of his (1989) (anticipating that some that “this [rhetoric] to law studentsthat “this and attorneys aboutsends exactly the wrong message [rhetoric] what type of discourse is appropriate in a formal legal setting and how it is acceptable to Failinger, speak to one another.”); Newman, “memorable” comments); (2017) (book review); (2017) (book review); 2016), (Aug. 4, (2006); Porto, justice-scalia; Scalia interpretation should be obvious.”); interpretation should be obvious.”); dissenting) (referring & Alito, JJ., to Court’s reasoning (Scalia, Thomas 2501 (2015) 2480, Justice Scalia did not confine his witticisms to as “pure applesauce”). his dissents. Writing fundamental details of not alter the does . . . “Congress that once observed for the Court, he provisions—ita regulatory scheme does or ancillary in vague terms not, one might say, hide elephants style as expressed in his separate opinions beginning in 1982 in his separate opinions beginning style as expressed chronology the D.C. Circuit. While a complete when he joined this article, the dissents is beyond the scope of of Justice Scalia’s of style rhetorical illustrate the change in next three subsections the years. his dissents over 222T dissents frequent increasingly his however, 2015, temperate, well-reasoned, tone. The a harsh, vitriolic reflected wrote in his early he sometimes separate opinions and concise dissents last of his Some the exception. became a judge years as although its worst. But at rhetoric disrespectful judicial reflected Court from criticism repeated rhetoric drew biting his unusually observers to care. seemed nor listened Scalia neither E C (2001). 40357-aap_18-2 Sheet No. 57 Side B 06/11/2018 08:46:58 B 06/11/2018 57 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 58 Side A 06/11/2018 08:46:58 Cmty. His IFE AND IFE 126 issuing issuing L (Scalia, J., Steger v. Def. 125 HE ,T opinion. Judge Scalia’s Judge Scalia’s 128 80 (2009). RIGINAL and an opinion O 130 CALIA S 1983) (Scalia, J., dissenting); J., (Scalia, 1983) per curiam MERICAN MERICAN NTONIN ,A A 129 Ensign-Bickford Co. v. Occ. Safety & Health Rev. Health Ensign-Bickford Co.Occ. Safety & v. Long-winded and pointedly critical Long-winded and ; USTICE ISKUPIC J 127 B dissenting). Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 288 U.S. 468 v. Cmty. for Creative Non-Violence, Clark OURT ) 6/4/2018 3:17 PM 223 OAN C Walton v. Ariz., 497 U.S. 639, 656–74 (1990) (Scalia, J., (Scalia, (1990) 656–74 639, U.S. Ariz., 497 v. Walton , ELETE D E.g. ISSENT OT UPREME D N S O , 468 U.S. 317 (1984); KCST-TV, Inc. v. F.C.C., 699 F.2d 1185, 1195– F.2d 1185, F.C.C., 699 KCST-TV, Inc. v. 317 (1984); U.S. 468 , , 470 U.S. 821 (1985) U.S. 821 470 , rev’d sub nom. 1(D rev’d rev’d at *51–*53. at *51–*53. ESEND Id. is no justification most biting: “There in law or The last sentence was perhaps his R A. Dissenting Discourse as Circuit Judge: 1982–1986 1982–1986 Judge: as Circuit Discourse A. Dissenting , 1982 U.S. App. LEXIS 23138, at *53 (Scalia, J., dissenting). dissenting). J., (Scalia, at *53 23138, LEXIS App. U.S. , 1982 A few weeks after joining the bench, Judge Scalia issued joining the bench, Judge Scalia A few weeks after wrote judge, Judge Scalia In his first full year as a circuit Judge Scalia spent four years on the D.C. Circuit, on the D.C. spent four years Judge Scalia . 130. 1983) (D.C. Cir. 1192–1200 1174, F.2d 718 Heckler, Chaney v. 125. the Seventh on Scalia a seat young reportedly first offered the President Reagan 126. LEXIS App. U.S. 1982 82-2417, Nos. 82-2377, Covelo Indian Cmty. v. Watt, 127. 129 128. Justice Scalia’s minorityconcurred in the Court’s judgment, he Even when ISRESPECTFUL ONSTITUTION OF NTRIKIN Circuit, but he turned it down, hoping for an appointment to the more prestigious and hoping it down, Circuit, but he turned influential D.C. Circuit. J for designated was not Why the opinion (Scalia, J., dissenting). 21, 1982) 23138, *37 (Dec. LEXIS. on entirely clear; it appears only publication is not 1201 (D.C. Cir. 1983) (Scalia, J., Cir. 1983) 1201 (D.C. Covelo C in practicality forand court to ride to the assistance of an allegedly uninformed this impotent Congress which will otherwise not be able, as it wishes, to help these plaintiffs.” relatively few separate opinions. He occasionally issued a biting issued a He occasionally few separate opinions. relatively not reflect judge did a circuit as but his typical practice dissent, Justice for Court earn as a Supreme he would the reputation even bombastic blistering, and sometimes writing sarcastic, dissents. an unpublished his first dissent—to rhetoric. The hinted at his future dissenting aggressive approach grant and the majority’s standing, he reasoned, plaintiffs lacked also implicated was not only misguided but of injunctive relief powers.the separation of dissents seven separate opinions—six D E and conclusion, reasoning of the majority’s an acerbic wit. dissent reflected opinions were long. opinions were long. eighteen printed pages to critique taking concurring in part and concurring in the judgment, way). the along jurisprudence the Court’s death-penalty dissenting), Comm’n, 717 F.2d 1419, 1423–24 (D.C. Cir. 1983) (Scalia, J., dissenting); J., dissenting); (Scalia, Cir. 1983) (D.C. 1423–24 F.2d 1419, Comm’n, 717 Investigative Serv., 717 F.2d 1402, 1407–09 (D.C. Cir. (D.C. 1407–09 1402, F.2d Investigative Serv., 717 (en banc) (Scalia,Cir. 1983) 622 (D.C. 703 F.2d 586, for Creative Non-Violence v. Watt, J., dissenting), (1984); United States v. Richardson, 702 F.2d 1079, 1086–94 (D.C. Cir. 1983) (Scalia, J., 1983) (Scalia, Cir. (D.C. 1086–94 1079, 702 F.2d (1984); United States v. Richardson, dissenting), 40357-aap_18-2 Sheet No. 58 Side A 06/11/2018 08:46:58 A 06/11/2018 58 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 58 Side B 06/11/2018 08:46:58 at at The (Scalia, ROCESS P 135 but few what seems see also id. 132 And several And several , 703 F.2d at 622–27 , 703 F.2d at 622–27 While typically typically While Watt RACTICE ANDRACTICE 131 , 702 F.2d at 1094 at 1094 702 F.2d , In the first case, the the In the first case, P 134 Judge Scalia’s dissent Judge Scalia’s dissent Richardson 136 138 , 467 U.S. 340 (1984). (1984). 340 U.S. , 467 PPELLATE (emphasis added)). A (Scalia, J., dissenting). rev’d (Scalia, J., dissenting); J., (Scalia, In sum, the position adopted by the majority—that a adopted by In sum, the position agreeing with him on jurisdiction but agreeing with him (“ , 702 F.2d at 1086–94 (Scalia, MacKinnon & Bork, JJ., Bork, & (Scalia, MacKinnon at 1086–94 F.2d , 702 , 698 F.2d at 1255 (Scalia, J., dissenting) (“I dissent from OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE dissenting) , (Scalia, J., dissenting) (“I dissent 717 F.2d at 1407 because I ELETE The plaintiff inmates had unsuccessfully The plaintiff inmates had will bring the criminal law process into greater law process the criminal will bring acknowledging that his perspective might not that his perspective might acknowledging D Richardson wrong on both counts.” counts.” both on wrong 137 702 F.2d at 1086, 1094 (Scalia, MacKinnon & Bork, JJ., dissenting). Bork, & (Scalia, MacKinnon 1094 at 1086, F.2d 702 OT 133 , 718 F.2d at 1192–1200 F.2d , 718 , N Steger O , were correctly found to lack standing.” (emphasis added)); were correctly found to lack standing.” (emphasis , 718 F.2d at 1192–1200 718 F.2d , 1(D Cmty. Nutrition Inst. , at 1192. seems to me seems to ESEND Id. Chaney Richardson See Chaney See, e.g. R In the second—a challenge to the use of execution drugs In the second—a challenge to But perhaps Judge Scalia was emboldened when three of when three Scalia was emboldened But perhaps Judge .E.g. surer ground . . . .” (emphasis added)); . .” . . surer ground in my view 138. 133 134. 135. 136. (1984). 317 U.S. United States, 468 Richardson v. 137. 131. (Scalia, Cir. 1983) (D.C. 1255–59 F.2d 1239, 698 Cmty. Nutrition Inst. v. Block, 132. NTRIKIN the Court’s action in reversing the district court’s the Court’s action in reversing the district court’s dismissal of individual consumers, the who J. concurring in part and dissenting in part), and dissenting part in J. concurring to an inquiry which Congress meant to be has applied a microscope believe the majority eye.”). naked with the conducted verbose, they were for the most part temperate in tone and well- part temperate most they were for the verbose, the defining would become that vitriolic tone the reflected a spark of his later aggressive each reflecting his early dissents, Court reversals. Supreme tone, prompted in an relief opinion granted double-jeopardy majority that the Judge Scalia dissented, warning interlocutory appeal. “ panel’s opinion while at the same rule, than the exclusionary public disrepute an evident injustice.” defendants criminal doing time Court reversed, Supreme Scalia’s tone was had not yet approved—Judge that the FDA more strident. and agency enforcement, to compel petitioned the lower court the circuit panel granted relief. 224T in part. and dissenting in part concurring the Scalia wit, snippets of reflected Some reasoned. Court. the Supreme on of his opinions characteristic and to me” such as “it seems clauses self-effacing even included view,” “in my one. be the only correct resolving the case on other grounds. E (Scalia, J., dissenting); dissenting). 1258 (“I prefer, therefore, to rest my disposition of this aspect of the1258 (“I prefer, therefore, to rest case upon my disposition to me MacKinnon & Bork, JJ., MacKinnon double jeopardy right ultimatelydouble jeopardy exists, but a double jeopardy claim may not now be asserted— 40357-aap_18-2 Sheet No. 58 Side B 06/11/2018 08:46:58 B 06/11/2018 58 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 59 Side A 06/11/2018 08:46:58 142 146 He 144 The Supreme The Supreme 145 took the position took the position court held that the the court held that , 745 F.2d 1500 (D.C. Cir. (D.C. Cir. 1500 745 F.2d , 143 , 471 U.S. 1113 (1985). 1113 U.S. , 471 The Supreme Court later Court later The Supreme Ramirez de Arellano v. Ramirez de Arellano permit for a days-long for a days-long permit 140 en banc 139 at 622. at 622. In In Id. vacated on vacated reh’g , The 141 . ) 6/4/2018 3:17 PM 225 294–95 ELETE D ISSENT OT his cutting rhetoric first appeared in a majority in a majority first appeared rhetoric his cutting judgment vacated on other grounds on vacated judgment , D N O 147 , [T]he sound which the majority heard was not an heard was not majority which the [T]he sound 1(D , U.S. at 468 , 703 F.2d at 599 (Mikva, J., writing for the majority). (Mikva, J., 599 at F.2d , 703 at 622–27 (Scalia, MacKinnon & Bork, JJ., dissenting). dissenting). JJ., & Bork, MacKinnon (Scalia, at 622–27 at 1198 (Scalia, J., dissenting). J., (Scalia, at 1198 Scalia, joined by two other judges, Scalia, joined by ESEND Id. Clark Id. far “is a commentary upon how wrote, he “That this should seem a bold assertion,” Id. (1985). 837–38 821, 470 U.S. Heckler Chaney, v. 288 (1984). U.S. 468 Non-Violence, Creative for Clark v. Cmty. Watt R sleeping can never qualify as expressive conduct. sleeping can never cert. granted In one early opinion, Judge Scalia revealed his capacity for In one early opinion, Judge Scalia The third case involved a case involved The third 145. 146. 143. 144. 147. (D.C. Cir. 1983) 143 724 F.2d 139. 140. 141. 142. ISRESPECTFUL NTRIKIN judicial and scholarly discussion of this basic constitutional guarantee has strayed from understanding.” common-sense common and 1984), declared that “to extend . . . protection [to] actions . . . conducted declared that “to extend . . . protection a point’ is to stretch the Constitution for the purpose of ‘making but beyond reason, and beyond the not only beyond its meaning to accommodate.” capacity of any legal system Court later reversed, holding regulation was a that the the restriction on manner or place, time, reasonable (without conduct,” assuming “symbolic demonstrators’ of protected expression. deciding) that sleeping can be a form aggressive dissenting rhetoric. aggressive dissenting rhetoric. Weinberger plaintiffs, Honduras property opinion written over a dissent. The States from using their owners, sought to enjoin the United Judge that D Court Supreme his later tone of the sarcastic foreshadowed “ opinions: of stifled cry “but the all,” he wrote, ring at anachronistic of well- the far-off shattering decisis, or perhaps stare smothered business of the the proper separating barriers established branches.” and judicial executive to act on the inmates’ that the agency’s failure reversed, holding judicially reviewable. request was not property where Service held on National Park demonstration prohibited. was camping E there in in expressive conduct by sleeping protestors engaged and the the plight of the homeless, tents to underscore makeshift rights. Amendment their First violated agency’s regulation 40357-aap_18-2 Sheet No. 59 Side A 06/11/2018 08:46:58 A 06/11/2018 59 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 59 Side B 06/11/2018 08:46:58 en en , 717 en , 698 and and ANCHA And ROCESS M 154 P 150 Steger A L , 471 U.S. 1113 AN OF Based on later vacated 151 Cmty. Nutrition Inst. , on M RACTICE ANDRACTICE P dissenting); dissenting); F.2d 1500, 1558 (D.C. Cir. 1984) ( 1558 (D.C. F.2d 1500, PPELLATE A , J., dissenting); 703 F.2d at 622–27 (Scalia, The Impossible Dream Impossible The Watt bythrusting the sharpest of our , 1246 (Scalia, J., dissenting) (“Assuming . . . that by . that by . . (Scalia, J., dissenting) (“Assuming 1246 the function of the federal courts to the federal the function of the Supreme Court vacated the the Supreme EE 148 L , 717 F.2d at 1423–24 (Scalia, J., dissenting); , 717 F.2d OURNAL OF OURNAL were J ITCH ) 6/4/2018 3:17 PM , 724 F.2d at 156 (Scalia, J., writing for the majority). for the majority). 156 (Scalia, J., writing at F.2d , 724 HE &M And the few separate opinions he issued over And the few separate opinions he ELETE , 727 F.2d at , 727 F.2d D 149 153 OT 152 N ARION Scalia, J., dissenting); O Carter , D , 699 F.2d at 1195–201 (Scalia, J., at 1195–201 F.2d , 699 1(D 1565–66 (Scalia, Bork & Starr, JJ., dissenting). Bork & (Scalia, 1565–66 OE Weinberger v. Ramirez de Arellano, 471 U.S. 1113, 1113 (1985) (mem.). (mem.). (1985) 1113 U.S. 1113, 471 Arellano, v. Ramirez de Weinberger Ensign-Bickford Co. J at ESEND Id. Ramirez de Arellano Ramirez de See See See, e.g. See R fashion as to preserve the proper functions of preserve the proper functions fashion as to government. The dissent invokes “the great tradition of judicial of judicial great tradition invokes “the The dissent rights againstunconstitutional of individual protection has not tradition . . . But that activities.” governmental right to us impel not does and La Mancha, from to us come the unrightable wrong It and in perilous directions. judicial lances heedlessly in such need to craft judicial protection acknowledges the With these few exceptions, the opinions Judge Scalia wrote these few With . ) (Scalia, Bork & Starr, JJ., dissenting) (emphasis in original), (emphasis in original), ) (Scalia, Bork & Starr, JJ., dissenting) 148 151. 149. 150. 745 Ramirez de Arellano v. Weinberger, 153. 152. 154. NTRIKIN banc decision. legislative developments, legislative developments, in his first year on the bench were well-reasoned, temperate, and well-reasoned, temperate, in his first year on the bench were judicial in tone. although reflected moderation, the next three years generally reasoning, critical of the majority’s were pointedly some On rehearing, the en banc court vacated the panel opinion Judge en banc court vacated the panel On rehearing, the that decision and he could not resist attacking Scalia had written, if it in dissent. “Even rights for Fifth Amendment of shareholder create a system has produced is the majority “the system purposes,” he wrote, analytic monstrosity.” either a practical disaster or an as having the majority one last jab, characterizing then he took of this court, which produces “an inflated notion of the function law.” constitutional stirring rhetoric but poor 226T the mocking Scalia, Judge purposes. military for property to state a claim: wrote that they failed dissent, E banc (1985). (Decca 1965) (including the lyric “[t]o right the unrightable wrong”). wrong”). right the unrightable the lyric “[t]o (including 1965) (Decca None of the biting Scalia rhetoric had any effect on the outcome. on effect had any biting Scalia rhetoric of the None F.2d at 1407–09 ( F.2d at 1407–09 KCST-TV, Inc. KCST-TV, F.2d at 1255–59 (Scalia, J. concurring in part and dissenting in part). in part). dissenting and in part J. concurring (Scalia, at 1255–59 F.2d “discriminatory intent” the majority means an intent to discriminate on the basis of race, 40357-aap_18-2 Sheet No. 59 Side B 06/11/2018 08:46:58 B 06/11/2018 59 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 60 Side A 06/11/2018 08:46:58 ) far too far (noting that It would not be would not It 155 , 749 F.2d at 887 at F.2d , 749 Id. . Restatement 156 at 1342 at Id. He also excoriated the He also excoriated regarding the meaning of the statutory the meaning regarding 157 Pepper v. Hart [1992] AC 593 Hart [1992] v. Pepper the ever-congenial banquet of the ever-congenial see alsoComm’n Ill. Commerce Restatement (Second) of Conflict Conflict of Restatement (Second) conclusion See See at 893 (“Legislative compromise (which is to say at 893 (“Legislative compromise (which is to most And finally, he offered this biting and And finally, he id. ) 6/4/2018 3:17 PM , 793 F.2d at 1345 (Scalia, J., dissenting). That opinion, dissenting). That opinion, at 1345 (Scalia, J., , 793 F.2d 227 158 He attacked the majority for creating “venue for creating “venue majority He attacked the . . . to reach a . . ELETE D at 890 (“The majority has it precisely backwards . . . when . . . it in. . . . when . . majority has it precisely backwards at 890 (“The ISSENT OT D N id. O . . . led to the District of Columbia in the of Columbia . led to the District present . . standard 1(D at 115. In mocking language, Judge Scalia commended “the wisdom of the Judge Scalia commended “the wisdom at 115. In mocking language, at 112 (Scalia, J., dissenting). dissenting). J., (Scalia, at 112 ESEND Beattie 91, Cir. v. United States, 756 F.2d 105–06 (D.C. 1984). Id. Id. Ctr. for Auto Safety R will lead next time to the substantive law of the Soviet Soviet law of the to the substantive will lead next time I suppose it must be regarded as I suppose it fortunate that the must to replace the choice-of-law rule of the majority’s decision statute with those of the of Laws fearcase. But one must that the circumstances of the next Antarctica case (or perhaps a revision of the But one 1984 case reflected Judge Scalia’s penchant for penchant Judge Scalia’s 1984 case reflected But one in an twenty-five-page dissent began Judge Scalia’s 156. 157. 158. 155. ISRESPECTFUL NTRIKIN English courts in refusing to attend feasts.” these [legislative history] long, however, before the English courts decided to partake of the very “feast” of which very “feast” of the to partake of the English courts decided before long, however, (Scalia, J., dissenting) notion of ([The majority’s] no preemption andtotal cede-back has basis in reality.”); effect applies a intelligent legislation)becomes impossible when there is no assurance that the statutory will be honored.”). is contained words in which it plaintiff’s motives—only or even the not criticize the majority’s reasoning, did however, the result: “What is not judicial vindication today we achieve of private rights, but judicial have their elected infringement upon the people’s prerogative to representatives determine private rights.” upon bear not laws that do how [to apply] text.” (emphasis in original)); Judge Scalia spoke so disparagingly. so disparagingly. Judge Scalia spoke to legislation may be consulted Parliament’s clearenacting of purpose statements when guide judicial interpretation). sarcastic off-the-point aside: off-the-point sarcastic this is the most demonstrable illogic.”); D as “ the plaintiffs by sought the result criticized one in an Antarctica of those killed rhetoric. Survivors acrimonious death. for wrongful United States crash sued the airplane Act Tort Claims under the Federal they stated a claim Whether country.” The Antarctica was a “foreign turned on whether was not, allowing the claim. panel held that it exasperated tone. by rewriting the solutions out of whole cloth” and choice-of-law it. of interpreting instead statute on “ for relying majority E of judicial power.” exercise to justify the speculative a banquet with (in the case of the FTCA, legislative history of years before it was finally in a number separate sittings adopted in 1946).” 40357-aap_18-2 Sheet No. 60 Side A 06/11/2018 08:46:58 A 06/11/2018 60 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 60 Side B 06/11/2018 08:46:58 ROCESS P , 99th Cong., 2d 2d , 99th Cong., , which will , which will RACTICE ANDRACTICE P at 113–17 (reproducing ABA letter of ABA letter at 113–17 (reproducing Id. PPELLATE ] (Statement of Senator McConnell). McConnell). (Statement of Senator ] A https://www.loc.gov/law/find/nominations/scalia/ Restatement (Second) Restatement Judge Scalia also received the American Bar also received the American Scalia Judge Id. OURNAL OF OURNAL J ) 6/4/2018 3:17 PM One senator quoted an unnamed judge who One senator quoted an unnamed available at available HE 160 ELETE Confirmation Hearings D OT N O 159 5–6, 1986), 1986), 5–6, , (Scalia, J., dissenting). at 130 F.2d 756 1(D at 23 (prepared Statement of Senator Denton (ellipsis in original)). Senator 161 ESEND Id. Hearing on the Nomination of Judge Antonin Scalia to be Associate Justice of the Antonin Hearing on the Nomination of Judge Beattie R Union. If that happens, one wonders whether the the whether wonders one happens, that If Union. purposes of Antarctica (for will be to convert consequence intothat case) would foreign law “foreign country” a (since will be suit result that the with the applicable) then be rather to set or of another court off in search the dismissed; to replace nonjurisdiction perhaps once again lead to the United States substantive lead to the United States substantive perhaps once again tempted which to confess that a decision law. I am cannot be ramifications produces such endlessly interesting all bad. One Senator, noting the frequency with which SupremeOne Senator, noting the frequency After this long-winded, sarcastic dissent, Judge Scalia’s sarcastic dissent, Judge After this long-winded, hearings, Judge Scalia Court confirmation At his Supreme 161. 160. 159. B. Dissenting Discourse as Supreme Court Justice: 1986–1995 NTRIKIN Denton reported that Judge Scalia was “genuinely liked by his colleagues on the Court, Denton reported that Judge Scalia was “genuinely liked by his colleagues on the Court, whether of liberal or conservative bent, and is very effective at forging coalitions between those on all sides of the issue.” Supreme Court of the United States Before the S. Comm. on the Judiciary Court of the United States Before the Supreme Sess. 29 (Aug. Court Justices had been issuing separate opinions, expressed Court Justices had been issuing sharp public the effect of these increasingly about “concern the Court.” Asked whether of on the collegiality disagreements the Court had “impeded separate opinions on the Supreme separate opinions were shorter, more temperate, and generally and temperate, more were shorter, separate opinions had whispered as if someone It was almost more self-effacing. to the Supreme he ever hoped to be elevated in his ear that if toning down his discourse to reflect a consider Court, he should more judicial temperament. for his skill “in the arcane art of cogently drafting was praised judicial opinions.” of commitment a “combination reported that Judge Scalia had . style that . . wittily sarcastic, with vigor and an incisive, often of the if it never commands a majority even troops will rally the court.” 228T E hearing.pdf [hereinafter hearing.pdf Association’s highest rating of “Well Qualified.” 1986). August 5, 40357-aap_18-2 Sheet No. 60 Side B 06/11/2018 08:46:58 B 06/11/2018 60 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 61 Side A 06/11/2018 08:46:58 167 170 164 671 671 at fanciful” see also id. 163 230 (Stevens & Scalia, JJ., & Scalia, 230 (Stevens at used language about 169 But otherwise the opinion But otherwise 166 See id. See Judge Scalia agreed that they that they Scalia agreed Judge In the same case, Justice Scalia also joined a 162 Justice Scalia ratcheted up the the Justice Scalia ratcheted up note 160, at 46–47. at 46–47. 160, note note 10, at 1077. at 10, note 168 supra , supra supra ) 6/4/2018 3:17 PM 229 ELETE D ISSENT OT D N O In the most pointed passage, he called it “ pointed passage, In the most 1(D 165 at 668 (Scalia, J., Rehnquist, C.J., & White, J., dissenting) (noting that “[t]here (noting that “[t]here dissenting) J., White, C.J., & Rehnquist, J., at 668 (Scalia, at 47. at 47. at 235 (Scalia, J., Rehnquist, C.J., & O’Connor, J., dissenting). The word word J., dissenting). The O’Connor, & C.J., Rehnquist, J., at 235 (Scalia, . at 668 (Scalia, J., Rehnquist, C.J., & White, J., dissenting); & White, C.J., . at 668 (Scalia, J., Rehnquist, ESEND Id. Id Confirmation Hearings Id. Delgado & Stefancic, Stefancic, Delgado & J., (Scalia, (1986) 234–37 208, 479 U.S. Party of Conn., Repub. Tashjian v. Id. Johnson v. Transp. Agency, Santa Clara Cty., 480 U.S. 616, 657–77 (1987) (1987) 657–77 616, U.S. 480 Cty., Clara Santa Agency, Johnson v. Transp. R His third dissent, this time in an affirmative-action case, case, in an affirmative-action this time His third dissent, Just eight years later, however, Justice Scalia’s separate Justice Scalia’s separate years later, however, Just eight . 170. 169. 162. 163. 164. 165. 166. 167. (Scalia & (1987) U.S. 572, 607–14 480 Cal. Coastal Comm’n v. Granite Rock Co., 168. ISRESPECTFUL NTRIKIN (same) Rehnquist, C.J., & O’Connor, J., dissenting). J., & O’Connor, Rehnquist, C.J., separate dissent authored by Justice Stevens. are, of course, those who believe that the social attitudes which cause women themselves towomen themselves the social attitudes who believe that which cause those are, of course, White, JJ, dissenting). (Scalia,Rehnquist, J.,dissenting.). C.J., White, J, & for the Court to hold that a Connecticut primary statute primary that a Connecticut to hold for the Court Party as between Republican the right of association implicated voters. and independent members and brief. His second dissent, was well-reasoned, temperate, as the first, White, was twice as long by Justice joined only the foreshadowed that rhetoric, reaching a degree of snarkiness two passages in the later opinions. He declared tone of many false,” “patently opinion majority had. Then, acknowledging that he had not issued a “notable” not issued a “notable” that he had acknowledging had. Then, judge, he expressed as a circuit separate opinions of number to keep necessary the self-restraint he could exercise “hope” that Court. to the Supreme so if confirmed doing from was His first description. early dissents fit this But not all his other Justices in tone—perhaps because two generally respectful joined it. and well reasoned. but it too was generally temperate was strikingly different. would find demeaning, career aspirations that many women’s D to the reasoning to glean judges or lawyers of either ability a particular decision,” support for his “quick a reputation earned him opinions had already the line “crossed cases having in some wit,” tongue and acerbic speech.” caustic and impermissibly language between lively E dissenting). “fanciful” appears regularly in Scalia dissents. in Scalia regularly “fanciful” appears 40357-aap_18-2 Sheet No. 61 Side A 06/11/2018 08:46:58 A 06/11/2018 61 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 61 Side B 06/11/2018 08:46:58 176 ROCESS P ). Scalia, J., & Perhaps 177 to vitriolic vitriolic to 174 RACTICE ANDRACTICE P Ark. Writers’ Project, Inc. v. Scalia, J., & Rehnquist, C.J., C.J., Scalia, J., & Rehnquist, , 480 U.S. at 607–14 (Scalia & 607–14 (Scalia U.S. at , 480 ; and ended on a dark note on a dark note and ended Rehnquist, C.J., dissenting Rehnquist, C.J., 172 PPELLATE A Cal. Coastal denounced an earlier case and case an earlier denounced 171 were characteristic of the disdainful, of the were characteristic , 479 U.S. at 234–37 (Scalia, J., Rehnquist, C.J., & & C.J., Rehnquist, (Scalia, J., at 234–37 , 479 U.S. All OURNAL OF OURNAL J ) 6/4/2018 3:17 PM 173 ); (1987) 681, 692–703 U.S. 481 United States v. Johnson, HE Tashjian ELETE D Gray v. Miss., 481 U.S. 648, 672–80 (1987) (Scalia, J., Rehnquist, 648, 672–80 (1987) (Scalia, J., Rehnquist, Gray v. Miss., 481 U.S. In between were sharply—even harshly— In between were ; OT , 480 U.S. at 657–77 (1987) (Scalia, J., & Rehnquist, C.J., dissenting, & Rehnquist, at J., 657–77 (1987) (Scalia, , 480 U.S. N 175 O , 483 U.S. at 394–401 (Scalia, J., Rehnquist, C.J., White & O’Connor, JJ., & O’Connor, JJ., White Rehnquist, C.J., J., (Scalia, at 394–401 U.S. , 483 1(D Johnson at 670–71 (Scalia, J., Rehnquist, C.J., & White, J., dissenting). White, J., & C.J., Rehnquist, J., (Scalia, at 670–71 dissenting). White, J., & C.J., Rehnquist, J., (Scalia, at 675–77 at 672–73 (Scalia, J., Rehnquist, C.J., & White, J., dissenting). White, J., & C.J., Rehnquist, J., (Scalia, at 672–73 ESEND Rankin Id. Id. Id. R The eleven dissents Justice Scalia authored during his first during his first Scalia authored dissents Justice The eleven 177. 176. ( 303–06 (1987) 483 U.S. 266, Ass’ns v. Scheiner, Am. Trucking 175. (Scalia, J., Rehnquist, C.J., (1987) 394–401 U.S. 378, 483 Rankin v. McPherson, 171. 172. 173. 174.White & C.J., Rehnquist, (Scalia, J., (1987) 519–21 496, U.S. 482 Booth v. Md., NTRIKIN dissenting). Ragland, 481 U.S. 221, 235–38 (1987) (Scalia, J., & (Scalia, J., & (1987) 235–38 221, U.S. Ragland, 481 Rehnquist, C.J., dissenting Rehnquist, C.J., Marshall & Stevens,(Scalia, Brennan, dissenting) JJ., dissenting); White & O’Connor, JJ., dissenting); Tyler Pipe Indus., Inc. v. Wash. State Dep’t of Rev., Wash. v. Pipe Indus., Inc. JJ., dissenting); Tyler White & O’Connor, in part and J., concurring dissenting in part); (Scalia, (1987) 254–65 483 U.S. 232, (1987) ( 578, 610–40 482 U.S. Aguillard, Edwards v. & White, dissenting in part). J., O’Connor, J., dissenting). J., O’Connor, most alarming, this most disrespectful dissent was joined by disrespectful this most most alarming, and were typically temperate three other Justices whose opinions were rhetoric disrespectful judicial in tone, as if Justice Scalia’s rest of the Court. beginning to infect the avoid certain jobs and to favor others are as nefarious as conscious, exclusionary point”). consensus on the no assuredly discrimination,” asserting that “there is declared that it should be overruled, that it should be declared was full of vituperative dissent, however, His last first-term record and the the Court of distorting the rhetoric, accusing in engaging any basis for its holding, lacking precedents, making the mind,” reasoning, “boggl[ing] misguided and to reason that were “contrary “sweeping” assertions an “absurd” result. finally, reaching experience,” and (1987) 846–50 828, U.S. 481 United States v. Mendoza-Lopez, dissenting); JJ., O’Connor, (Scalia, J. dissenting) 230T precedent, Court denigrated from likely to flow of the injustices that warned of foreboding decision. the Court’s and lengthy. reasoning that focused on critiquing the Court’s worded dissents precedent. undermining or Justices other rather than attacking E his trademark. soon become tone that would exaggerated brief respectful and generally ranged from term White, JJ., dissenting); C.J., White & O’Connor, J.J., dissenting); White & O’Connor, J.J., C.J., 40357-aap_18-2 Sheet No. 61 Side B 06/11/2018 08:46:58 B 06/11/2018 61 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 62 Side A 06/11/2018 08:46:58 And generally And generally Perhaps its most Perhaps its most 178 180 179 ) 6/4/2018 3:17 PM 231 ELETE D ISSENT OT D N O 1(D ESEND R That is what this suit is about. Power. The allocation of allocation The about. Power. is That is what this suit Congress, the President, power among and the courts . . . . Frequently come an issue of this sort will before the Court the potential of the clad, so to speak, in sheep’s clothing: asserted in the change principle to effect important of power is not immediately evident, and must equilibrium Today’s decision is a potential cornucopia of waste. decision is a potential cornucopia Since Today’s possiblyits reasoning cannot where it leads, be followed the Claims the jurisdiction of thrownCourt has been into is the opinion’s hand, perhaps this chaos. On the other possibly be followed it cannot Since greatest strength. where it leads,the lower courts to may have the sense single to the it to limit it leads nowhere, and conclude that before us. type of suit Another was a thirty-seven-page dissent to an otherwise to an dissent Another was a thirty-seven-page The dissents Justice Scalia issued during his first term were term his first during issued Scalia Justice dissents The One 1988 dissent, for example, ended this way: ended this for example, One 1988 dissent, 178. only one solo dissent in his first term, Justice Scalia wrote alone While he wrote 179. & Kennedy, (1988) C.J., (Scalia, 930 J., Rehnquist, 487 U.S. 879, Mass., Bowen v. 180. Justice (Scalia, J., dissenting). (1988) 697–734 654, U.S. Morrison v. Olson, 487 ISRESPECTFUL NTRIKIN more often as the years went on. In his second term, he authored three solo dissents; in his authored three he term, his second In years went on. more often as the his fifth, five. In many later terms, it was not unusual third, two; in his fourth, one; and in In a typical term, behalf. solely on his own for five of Justice Scalia’s dissents to be issued he wrote an average of ten dissents, although that number declined significantly between One reason for the decline in 1993 and 1995. those years might have been Justice majority then shiftedCourt’s The replacing Justice Marshall. appointment, Thomas’s 1991 perspective. conservative to a more J., dissenting). decision. part in this seven-to-one no took Kennedy memorable paragraph was about the allocation of power: of paragraph was about the allocation memorable unanimous opinion upholding a statute that authorized unanimous to investigate criminal of an independent counsel appointment officials. government against allegations D three during his next he would author of those characteristic solo that he wrote Court, except the Supreme on decades over the years. more frequently dissents E his dissents of Many biting. more rhetoric became his speaking, Scalia often but Justice long-winded, if were well-reasoned, vitriol. could not resist adding 40357-aap_18-2 Sheet No. 62 Side A 06/11/2018 08:46:58 A 06/11/2018 62 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 62 Side B 06/11/2018 08:46:58 ROCESS P note 6, at 79 (noting that (noting that 6, at 79 note He ended with He ended with note 124, at 851. He also He note 124, at 851. RACTICE ANDRACTICE 182 P supra supra Kapgan, Kapgan, PPELLATE A see also 181 He preferred to “rely upon the judgment He the judgment preferred to “rely upon OURNAL OF OURNAL J ) 6/4/2018 3:17 PM 183 HE ELETE D 184 OT N O , 487 U.S., 487 J., dissenting). (Scalia, at 711–12 1(D opinion as “my lonesome dissent.” Scalia, note 97 (quoting Justice Scalia). (quoting Justice 97 note at 699 (Scalia, J., dissenting) (citation omitted). Justice Scalia at 699 (Scalia, J., dissenting) (citation omitted). later referred to at 734 (Scalia, J., dissenting); at 734 . ESEND Id. Morrison Id. Id R supra supra As a judicial demolition project, today’s decision is decision is project, today’s As a judicial demolition impressive. The machinery employed byopinions of the Justice Brennan and Justice isBlackmun no more accommodation that substantial than the antinomy of not . that government may . and the boldreligion may but be required but not permitted, . assertion unsupportable “convey a of religion.” With this message of endorsement for an exemption frail equipment, the Court topples of a sort that expresslyreligious publications appears in the have sales and45 States that use laws of at least 15 of the in the text of the basis taxes . . . . I dissent because I find no of or the traditions decisions of this Court, the Constitution, be discerned by be discerned analysis. and perceptive a careful this But as a wolf. wolf comes Justice Scalia occasionally wrote with startling fervor. In a wrote with startling Justice Scalia occasionally dissenter—but because the opinion was written by Rehnquist, who had been had been who by Rehnquist, written dissenter—but because the opinion was me, and who I thought would realize head of the Office of Legal Counsel, before not only the importance of that power of the president to prosecute. And he wrote the opinion; he wrote it in a manner that was more extreme than I think wrenching. was Bill Brennan would have written it. That [I]t was wrenching not only because it came out wrong—I was the sole was wrenching not only because it came out[I]t wrong—I was Morrison 181. 182. 183. 184. NTRIKIN called it the “most wrenching” case he had ever decided: decided: ever had he case wrenching” called it the “most melodrama, criticizing the majority’s “ad hoc approach” to to approach” “ad hoc the majority’s criticizing melodrama, to produce a “is guaranteed that constitutional adjudication of the Court a majority case, that will make result, in every happy with the law.” the people and of our system, who constructed of the wise men that have shown and of two centuries of history who approved it, it to be sound.” religious periodicals exempting down a statute case striking with this jarring rhetoric: began his dissent a state tax, he from 232T departing of them colleagues, accusing lectured his Then he without decision the announcing text, Constitutional the from that the of laws “the government and abandoning analysis, that a scheme in its place instituting established,” Constitution all.” of laws at “is not a government E Senior, his Scalia was “ever the one for drama”). for the one “ever Scalia was 40357-aap_18-2 Sheet No. 62 Side B 06/11/2018 08:46:58 B 06/11/2018 62 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 63 Side A 06/11/2018 08:46:58 in in 187 , We Gregg The vitriolic The vitriolic . 188 186 McKoy v. North Carolina McKoy v. North 185 But it is this Court that has pushed the the But it is this Court that has pushed . ) 6/4/2018 3:17 PM 233 ELETE D 428 U.S. 153, 195 (1976) . . . . Disparaging a . . . 195 (1976) 428 U.S. 153, This is the sort of argument that causes stateThis is the sort of argument ISSENT OT D N . . . O (Scalia, J., Rehnquist, C.J., & Kennedy, (Scalia, J., J., dissenting) C.J., Rehnquist, 1(D at 457–71 (Scalia, J., Rehnquist, C.J., & O’Connor, J., dissenting). J., O’Connor, & C.J., Rehnquist, J., (Scalia, at 457–71 at 45 at 45 ESEND Id. 433 (1990). 494 U.S. Id. Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 29–30, 33 (1989) (Scalia, J., Rehnquist, Rehnquist, J., (1989) (Scalia, 33 29–30, U.S. 1, Bullock, 489 v. Inc. Tex. Monthly, R v. Georgia, practice we havenot indeed coerced, at least encouraged, if the chargegives new substance to that we have been have intimated that requiring “the sentencing authority ...... “the sentencing authority that requiring have intimated to specify it relied factors reaching its decision” upon in the “that death sentences are may be necessary . . . to ensure capriciouslyor in a freakish not imposed manner.” legislators to pull their hair. A general verdict is of course hair. A general verdict is of legislators to pull their the usual practice. States to special verdicts in the capital sentencing field. Justice Blackmun believes that [the Court’s] grotesque Court’s] believes that [the Justice Blackmun jury cannot be blamed deliberations normal distortion of announces, but is rather the Court today the rule upon North Carolina’s own fault, because the scheme it has the departure from “an extraordinary adopted represents .. . way in which juries customarily operate.” Typically, he render unanimous . called upon to . . juries “are points out, issues of a given case,” verdicts on the ultimate with “no on the that the jury reach agreement general requirement factualpreliminary issues which underlie the verdict.” our people for disapproving this longstanding and longstanding this disapproving for people our practice. widespread this healthy—that constitutionally is not right—it It is not to refashion feel authorized Court should civil anew our of a theory religion, adopting relationship with society’s current practice, that is contradicted by church and state law. I dissent. even our own case tradition, and Justice Scalia even attacked Justices who wrote separate attacked Justices who wrote Justice Scalia even 186. 187. 188. 185. ISRESPECTFUL NTRIKIN C.J., J., & Kennedy, dissenting) C.J., which Justices Rehnquist and O’Connor joined. which Justices Rehnquist directed at Justice pointedly dissent were footnotes in the perhaps the last of them opinion, and his concurring Blackmun strident: the most D rhetoric: jarring with this equally And he ended and his lengthy for example, Consider, concurring opinions. in dissent otherwise respectful E 40357-aap_18-2 Sheet No. 63 Side A 06/11/2018 08:46:58 A 06/11/2018 63 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 63 Side B 06/11/2018 08:46:58 192 . ROCESS P Grady v. Grady v. ex post facto RACTICE ANDRACTICE P Zivotofsky v. Kerry Zivotofsky 191 Regions Hospital v. Shalala, 522 U.S. Regions Hospital v. Shalala, 522 U.S. , ex rel. PPELLATE innick v. Miss., 498 U.S. 146, 166 (1990) 166 (1990) 146, U.S. innick v. Miss., 498 A . M United States v. Dixon, 509 U.S. 688 (1993). U.S. 509 Dixon, United States v. See, e.g. Zivotofsky Zivotofsky OURNAL OF OURNAL J Simmons v. S.C., 512 U.S. 154, 185 (1994) (Scalia & 185 Simmons v. S.C., 512 U.S. 154, overruled by overruled by ) 6/4/2018 3:17 PM 501 U.S. 380, 405, 419 (1991) (Scalia, J., Rehnquist, C.J., & Rehnquist, (1991) (Scalia, J., 419 405, U.S. 380, 501 HE 189 (referringwhole new chapter in the ‘death-is-different’ to “a ELETE D OT N O Scalia, O’Connor & Thomas, JJ., dissenting) (referring to “ JJ., & Thomas, O’Connor Scalia, 1(D Justice Scalia dropped these sarcastic comments—all these sarcastic comments—all Scalia dropped Justice at 542–43 (Scalia & Kennedy, JJ., & Rehnquist, C.J., dissenting). Similar dissenting). Similar C.J., Rehnquist, JJ., & (Scalia & Kennedy, at 542–43 at 470 n.5 (Scalia, J., Rehnquist, C.J., & O’Connor, J., dissenting). dissenting). J., O’Connor, & C.J., Rehnquist, J., (Scalia, n.5 at 470 190 , ESEND ___ U.S. ___, 135 S. Ct. 2076 (2015) Ct. 2076 S. 135 ___, ___ U.S. Id. Id. 495 U.S. 508 (1990), 508 (1990), 495 U.S. R administering a “bait and switch” capital sentencing capital switch” and a “bait administering jurisprudence. There are many to here, and the answers all of questions are ridiculous. them been reversal, discovered to have This delicious role Double Jeopardymandated by the lo these 200 Clause years, justice. for high comedybut inferior makes If the judge initiallythe previously decides that prosecuted will he (whatever that means) proved” be offense “will not it “has the conclusion of the trial whether have to decide at (whatever that means). been proved” no prior case law constitutional text and Even if we had no is adequately opinion to rely upon, rejection of today’s desireby legal to protect our criminal the modest supported system from ridicule. today’s with the inscrutability of confronted [P]rosecutors on the assumption opinion will be well advised to proceed that the “same transaction” theoryhas already been else has. to tell what hard adopted. It is Toward the end of his time on the Court, Justice Scalia did Toward the end of his time 192. 191. 189. 190. NTRIKIN much the same thing in much the same he suddenly dissent, a generally well-reasoned After writing aimed at his colleagues—into a nearly two-page paragraph: a nearly at his colleagues—into aimed 234T in dissent otherwise temperate the end of an And near E Corbin legislative psychoanalysis”); dissenting) Thomas, JJ., of composing” and continuous process this Court is in the apparently which jurisprudence the “Federal Rules of Death Penalty so to speak, which this Evidence, Court will to the swiftness and predictability of justice) year bypresumably craft (at great expense Roemer, year”); Chisom v. its method as approach as “backwards,” Court’s (characterizing dissenting) J., Kennedy, rather than one that “psychoanalyzes Congress reads its laws,” and its holding as the well of future legislation”); “poison[ing] (Scalia, J. & Rehnquist, C.J., dissenting) (referring to “a veritable dissenting) (referring fairyland castle(Scalia, J. & Rehnquist, C.J., of imagined constitutional restriction”). passages appear in other Scalia dissents. 448, 469 (1998) ( 469 (1998) 448, 40357-aap_18-2 Sheet No. 63 Side B 06/11/2018 08:46:58 B 06/11/2018 63 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 64 Side A 06/11/2018 08:46:58 194 193 198 to belittle the Court’s concerns about to belittle the and to warn about the “destruction of of and to warn about the “destruction 195 197 to criticize the Court’s conclusions in a to criticize the Court’s conclusions ) 6/4/2018 3:17 PM 235 196 ELETE D ISSENT Morgan v. Ill., 504 U.S. 719, 748–49, 752 (1992) (Scalia & Thomas, (Scalia & Thomas, (1992) 752 748–49, 719, U.S. Morgan v. Ill., 504 OT D N O 1(D see also at 2121, 2123 (Scalia, J., Roberts, C.J.,Roberts, Alito, at 2121, 2123 (Scalia, dissenting). J., J., & ESEND Dewsnup v. Timm, 502 U.S. 410, 435 (1992) (Scalia, J., dissenting) (accusing J., dissenting) 435 (1992) (Scalia, 502 U.S. 410, Timm, Dewsnup v. Id. Rutan v. Republican Party of Ill., 497 U.S. 62, 94 (1990) (Scalia & Kennedy, JJ., 94 (1990) (Scalia & Kennedy, 62, Rutan v. Republican Party of Ill., 497 U.S. (1990) (Scalia, Brennan, Marshall & Stevens, JJ., 836, 861 U.S. Md. v. Craig, 497 R In other dissents, Justice Scalia used melodramatic Justice Scalia used melodramatic In other dissents, exaggeration as well as Justice Scalia was prone to 197. (1991) (Scalia, J., dissenting) 44, 71 500 U.S. Cnty. of Riverside v. McLaughlin, 198. 193. 196. C.J., J., & Rehnquist, 426–31 (1991) (Scalia, 499 U.S. 400, Powers v. Ohio, 194. 195. ISRESPECTFUL NTRIKIN JJ., & Rehnquist, C.J., dissenting) (criticizing Court’s reasoning in a jury-selection case as jury-selection(criticizing case C.J., dissenting) Court’s reasoning in a Rehnquist, JJ., & failing to pass over an“the most gullible scrutiny” and as making “a great leap concluding that its of logic,” offensive to the unbridgeable chasm holding was “grossly” Constitution). (“Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace churns its cycle for up once to two days—never of a Dickensian bureaucratic machine, as it given the opportunity to that there show a judge is absolutely no reason to hold him, that a made.”). mistake has been them rendering well-established and oft-repeated principles” and Court of “disregarding less attainable”). to achieve are designed certainty they the “less secure and dissenting); predictability” stemming from the Court’s interpretation of a the from predictability” stemming Code. lien provision in the Bankruptcy language to ridicule the Court’s conclusion that a system of conclusion that a system the Court’s language to ridicule rights, could infringe on First Amendment political patronage by child of closed-circuit testimony to contest its approval of alleged abuse, victims in prosecutors’ racial discrimination unconstitutional strikes, peremptory case, search-and-seizure accused the Court of vitriol. In one case he melodramatic D rule a of “announc[ing] the Court accused as he tone switched one of dismissed to the facts,” gerrymandered that is blatantly in the criticized a step as “[n]onsense,” conclusions the Court’s asserted Mad Hatter,” worthy of the analysis as “a leap Court’s power over issuing jump from as well “may Court that the law-review on writing monopoly to a judgments declaratory Court’s facilitated by the foreign policy the articles,” likened predicted that the decision and of a monarchy,” decision to “that powers that the People of separated the structure would “erode of their liberty.” the protection for established E & Rehnquist, C.J., dissenting) (accusing the Court of making “its constitutional the Court civil dissenting) (accusing C.J., & Rehnquist, service reform absolute”). dissenting) (expressing “subordination of explicit constitutional worry about text to public policy”). currently favored 40357-aap_18-2 Sheet No. 64 Side A 06/11/2018 08:46:58 A 06/11/2018 64 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 64 Side B 06/11/2018 08:46:58 ROCESS Lee v. P RACTICE ANDRACTICE P In another he predicted he predicted In another 200 PPELLATE A . . . . . In a second, he challenged the he challenged In a second, . 199 201 OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE . ) ELETE D OT N Excerpts from his fifteen-page dissent are packed his fifteen-page dissent are packed Excerpts from O an Establishment Clause case involving clergy clergy Clause case involving an Establishment 203 1(D a vast uncertainty in the law,” bound to yield a future a future to yield bound law,” the in uncertainty a vast 202 , at 586 (Kennedy, J., writing for the Court). writing for J., (Kennedy, at 586 “revolutionary new doctrine of standing that will permit will permit of standing that new doctrine “revolutionary ESEND Id. United States v. Fordice, 505 U.S. 717, 749, 751 (1992) (Scalia, J., concurring and J., concurring (Scalia, 751 (1992) 717, 749, U.S. United States v. Fordice, 505 Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 209 209 167, Servs. (TOC), Inc., 528 U.S. Envt’l Friends of the Earth, Inc. v. Laidlaw R (Scalia & Thomas, JJ., dissenting) (Scalia & The Court presumably would separate graduation separate would presumably The Court instances of public other benedictions from invocations and religious beliefs” of on the “preservation and transmission “psychological coercion.” I find it ground that they involve Clause that our Establishment a sufficient embarrassment has come to . . . holiday displaysjurisprudence regarding In holding that the In holding that EstablishmentClause prohibits graduation at public-school benedictions invocations and is as . laysa tradition that waste . . the Court ceremonies, themselves ceremonies graduation old as public-school of its bulldozer the . As its instrument of destruction, . . . and a boundless, social engineering, the Court invents boundlesslymanipulable, test of psychological coercion . . . . Today’s Constitution, cannot fortress which is our protection, that opinion shows . . . changeable philosophical possiblythe rest upon why our Court . . . . predilections of the Justices of this Nation’s A particularly striking example of Justice Scalia’s Justice Scalia’s of example striking A particularly 202. 577 (1992). 505 U.S. 203. 201. 199. White & Souter, JJ., & (1991) (Scalia, 133 110, U.S. 500 Lankford v. Idaho, 200. NTRIKIN dissenting). Rehnquist, C.J., dissenting Rehnquist, C.J., (2000) disrespect for his judicial colleagues appeared in colleagues his judicial for disrespect Weisman prayers at a public-school invited to offer nonsectarian members graduation. rhetoric: inappropriate of his most with examples 236T “ creating or of no conviction and finality “the lawfulness in which can be assured.” sentence E Court’s over to to be handed civil penalties body of public the entire interests.” by private enforcement destabilization” and and confusion “years of litigation-driven the Court’s caused by turmoil” “judicially ordained reasoning. “inscrutable” 40357-aap_18-2 Sheet No. 64 Side B 06/11/2018 08:46:58 B 06/11/2018 64 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 65 Side A 06/11/2018 08:46:58 with its psycho- Lemon test . . . . Unfortunately, ...... Lemon ) 6/4/2018 3:17 PM 237 ELETE D ISSENT OT D N O 1(D ESEND R The Court . . . does not sayThe Court . . . . that students are . . psychologically heads, place their coerced to bow their prayerhands in a Dürer-like position, pay attention to the further (Perhaps prayers,pray. or in fact utter “Amen,” research remainsintensive psychological on to be done these matters.) of coercion the concept I see no warrant for expanding penalty—abeyond acts backed by threat of of brand coercion that, happily, is readily of us discernible to those who have made of a career of reading the disciples Blackstone rather than of Freud. cases. . . prayer” The Court relies on our “school . But not support, theywhatever the merit of those cases, do less compel,much the Court’s psycho-journey. has become bedeviled Our Religion Clause jurisprudence abstractions that are (so to speak) by reliance on formulaic long- with, our conflict but positively not derived from, these among Foremost accepted constitutional traditions. has been the so-called Church and state would not be such a difficult subject if some religion were, as the Court apparently it to be, thinks “requir[e] scrutiny“requir[e] commonly more interior with associated interior . But . . judiciary.” than with the decorators science compared is a rock-hard decorating to psychology Court . . . [T]he bypracticed beyond the has gone amateurs. what they judges know realm where Court’s are doing. The that state officialsargument to take “coerced” students have at graduation and benediction part in the invocation on it, incoherent. too fine a point put is, not to ceremonies however, the Court has replaced having disability of coercion test, which suffers the double practice, and historic no roots whatever in our people’s being as infinitely expandable as the reasons for psychotherapy itself. ISRESPECTFUL NTRIKIN D E 40357-aap_18-2 Sheet No. 65 Side A 06/11/2018 08:46:58 A 06/11/2018 65 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 65 Side B 06/11/2018 08:46:58 I do I ROCESS P 204 RACTICE ANDRACTICE P This is not an important case, , Richmond v. Lewis, 506 U.S. U.S. 506 v. Lewis, , Richmond “ criticized the majority criticized the majority at 722 (Scalia, J., dissenting) (“ 207 See, e.g. See, PPELLATE A Nevertheless, he took it upon 205 see also id. that, and has never been. that, and an act of willpower rather than of willpower rather an act of Then he moved on to a jurisprudence on to a Then he moved OURNAL OF OURNAL not J and scolded it for “equat[ing] parole and “equat[ing] for and scolded it ) 6/4/2018 3:17 PM 209 HE 208 210 ELETE D OT N He declared each part of the Court’s two-step two-step each part of the Court’s He declared O (Scalia, J., dissenting). J., (Scalia, , 529 U.S. at 727 (Scalia, J., dissenting) ( , 529 206 1(D 725 at 632–45 (Scalia, J., Rehnquist, C.J., White & Thomas, JJ., dissenting & Thomas, JJ., White C.J., Rehnquist, J., at 632–45 (Scalia, at 727 (Scalia, J., dissenting). Even on the rare occasions when Justice Scalia occasions when at 727 (Scalia, J., dissenting). Even on the rare at 715 (Scalia, J., dissenting); at 716 (Scalia, J., dissenting). J., (Scalia, at 716 dissenting). J., (Scalia, 719 at 717, at ESEND Id. Id. Id. Id. Id. Id. Johnson R [A]n institution that is careless in small things is more institution that is careless in small things is more [A]n an institution that is ones; and in large likely to be careless almost certain in willful in small things is to be willful The fact that nothingbut the Court’s views of large ones. supports today’s “congressional purpose” and policy is if only of great concern, because of a judgment matter The overwhelming what it tells district and circuit judges. the result . reached majority Courts of Appeals . . of the demanded by. . . unambiguously the statutory text. headier daysof to return to decision invites them Today’s when laws what judges knew they meant not-too-yore, to mean. ought purely entirelybe indulged that can avocation personal in secret, like pornography, of one’s in the privacy For room. believers it is most Beyond their disrespectful rhetoric, exaggeration, and exaggeration, rhetoric, their disrespectful Beyond 207. 206. 208. 209. 210. 204. 205. NTRIKIN since it deals with the interpretation of a statute that to eliminate, for thehas been amended since it deals with the interpretation of a statute we today resolve.”).future, the issue rhetoric. negative he used dissent, wrote a concise 40, 54 (1992) (Scalia, J., dissenting) (scolding Court for using a “recently invented (Scalia, 40, 54 (1992) (emphasis in original)). interpretive analysis “patently false”; “patently interpretive analysis judgment.” release.” supervised lesson: 238T were characteristically opinions Scalia’s separate melodrama, a case that even dissent in a twelve-page He once added verbose. was unimportant. he admitted its errant methodology, for to lecture the majority himself it “ bluntly declaring E to interpret a dictionaries of his favored one for failing to consult on “fictitious” instead relying meaning,” “ordinary term’s dictionary support; not contend that the result the Court reaches is any way remarkable, only that it is any not contend that the result the Court reaches is not the way remarkable, the statute.”). result called for by 40357-aap_18-2 Sheet No. 65 Side B 06/11/2018 08:46:58 B 06/11/2018 65 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 66 Side A 06/11/2018 08:46:58 (Scalia & (1994) , 507 U.S. 680, 714–24 714–24 U.S. 680, , 507 in part). He also joined joined also part). He in dissenting 156–57, 161, 163 161, 156–57, Justice Scalia reverted to form to form Scalia reverted Justice Withrow v. Williams in part and dissent, Justice Scalia wrote a 1993 opinion 211 ...... ring Smith T.B., 511 U.S. 127, 127, U.S. T.B., 511 ) 6/4/2018 3:17 PM 239 ELETE ex rel. D ISSENT OT 212 D N O 1(D ESEND J.E.B. v. Ala. J.E.B. v. R In order . . . to pay conspicuous obeisance to the equality of equality obeisance to the of conspicuous pay . to . . In order the sexes, the that has been Court imperils a practice juryconsidered an essential part of fair since the dawn trial of the United States of the common law. The Constitution people’s this vandalizing of our neither requires nor permits traditions. Perhaps, however . . ., only the stereotyping of groups groups of ., onlythe stereotyping . . Perhaps, however entitled to heightened or strict scrutiny “the very constitutes stereotype the law condemns”—so that other stereotyping players are dumb) (e.g., wide-eyedand football blondes OK. remains Today’s opinion is an inspiring demonstration of how of how demonstration is an inspiring opinion Today’s are in we thoroughlyJustices up-to-date and right-thinking sexes (or as the Court would have to the matters pertaining sternly the male and how we disapprove it, the genders), to be of our predecessors. The price chauvinist attitudes display—a surely—is price, this modest that most paid for . . . to the case at hand. is quite irrelevant of the opinion [T]he Court itself totreats of the an extended discussion of womenhistoric exclusion not only from jury but service, (which is rather like jury service at the bar also from going to the courthouse a lot). service, in that it involves Justice Scalia’s dissent in a 1994 Establishment Clause case Establishment Justice Scalia’s dissent in a 1994 Although the single dissent he authored in 1993 was in 1993 he authored dissent single the Although 212. 211. (Scalia, Stevens & Souter, (1993) 223, 241–47 Smith v. United States, 508 U.S. ISRESPECTFUL NTRIKIN Thomas, JJ., & Rehnquist, C.J., dissenting). dissenting). C.J., Rehnquist, Thomas, JJ., & concurring in part and dissenting in part in JJ., concur Thomas, (1993) (Scalia & dissenting and concurring opinions by other Justices. by opinions dissenting and concurring requirement” that yielded “a propensity to error that make a scandal and a mockery of the of the mockery and a scandal to error that make a propensity requirement” that yielded “a capital sentencing process”). In addition to theJJ., dissenting). challenging New York school district boundaries is remarkable in 1994, writing an extraordinarily sarcastic dissent in a dissent sarcastic extraordinarily writing an in 1994, strikes to the use of peremptory case challenging paternity the jury: from women remove D clear, and concise, respectful, E 40357-aap_18-2 Sheet No. 66 Side A 06/11/2018 08:46:58 A 06/11/2018 66 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 66 Side B 06/11/2018 08:46:58 215 217 ROCESS P “mislead[ing],” RACTICE ANDRACTICE P 214 surprised.Once this and failed to “give the the and failed to “give 220 not PPELLATE A He declared that the Court’s He declared that the Court’s 219 213 and “steamrolling . . . the difference . . and “steamrolling 218 OURNAL OF OURNAL J ) 6/4/2018 3:17 PM , however, am , however, am I HE ELETE D “astonishing[]” and “breathtaking,” OT N 216 of religion,” O 1(D at 734 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 734 dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 751 at 735 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 735 dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 738 at 752 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, JJ., & Thomas, (Scalia at 752 at 735 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 735 at 736 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting) (emphasis in C.J., Rehnquist, & at 736 (Scalia & Thomas, JJ., ESEND Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 732 (1994) 687, 512 U.S. Bd. of Educ. of Kiryas Joel Vill. Grumet, Sch. Dist. v. Id. Id. Id. Id. Id. Id. Id. R The Court today finds that the Powers That finds that the today The Court up in Be, of the an establishment effect Albany, to conspired have more be I do not know who would Hasidim. Satmar or the Founders of our Nation surprised at this discovery: The of the Satmar. founder Teitelbaum, Grand Rebbe Joel that after to learn be astounded Grand Rebbe would with to America and coming escaping brutal persecution ascetic the for their hope of religious toleration modest the Satmar become so powerful, so had form of Judaism, become an to have as closely with Mammon, allied “establishment” State. of the Empire Founding And the astonished to find that the EstablishmentFathers would be Clause . . . has been employed to prohibit characteristically accommodation American and admirably the religious of practices (or of a tiny precisely,more cultural peculiarities) minority sect. history and as guides, nothing Court has abandoned text callingprevents it from toleration the religious establishment of religion. 213. 214. 215. 216. 217. 218. 219. 220. disfavoring NTRIKIN (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting) (citation omitted) (emphasis inRehnquist, C.J., JJ., & (Scalia & Thomas, original). Justice Scalia then characterized the Court’s opinion and Justice Scalia then characterized precedent, reasoning as “misdescrib[ing]” “astounding,” “ church and civil authority held between civil authority held by a of a church.”by members analysis “could scarcely be weaker” scarcely analysis “could 240T attacks its insulting also for but sarcasm, its extreme for not only of view, points separately expressed Justices and their on fellow first The paragraph is name. out by singling them repeatedly off-putting: instantly E original). 40357-aap_18-2 Sheet No. 66 Side B 06/11/2018 08:46:58 B 06/11/2018 66 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 67 Side A 06/11/2018 08:46:58 This This 225 226 majority held He thought thought He 221 in which the “not a rational “not a rational in 2015. Kingsley series makes the point. series makes the point. 229 223 228 , Obergefell at 749; Justice Kennedy for using at 749; Justice Kennedy -to- id. ; and Justice O’Connor for proposing no no for proposing Justice O’Connor ; and pernicious,” Romer id. 222 Romer v. Evans at 2473 (Breyer, J.). While Justice Scalia’s dissent Id. Obergefell v. Hodges Ornelas v. United States, 690, 700–05 (1996) 517 U.S. , Kingsley v. Hendrickson, ___ U.S. ___, 135 S. Ct. 2466, 2466, Ct. S. U.S. ___, 135 ___ Hendrickson, Kingsley v. , ) 6/4/2018 3:17 PM 241 E.g. See test so the Court would “no longer feel the need to even pretend need to even longer feel the “no the Court would test so ELETE D ISSENT OT Lemon D N at 2478 (Scalia, J., Roberts, C.J. & Thomas, J., dissenting). But Scalia& Thomas, C.J. at 2478 (Scalia, J., Roberts, and based on “the flimsiest of evidence.” on “the flimsiest and based O Id. 224 as might be best as might in illustrated by the saga that began 1(D at 752 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). He went on to to went on He C.J., dissenting). Rehnquist, & at 752 (Scalia & Thomas, JJ., 227 at 740 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 740 at 735 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 735 at 737 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 737 at 741 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, & Thomas, JJ., (Scalia at 741 ESEND Id. Id. Id. Id. Id. R The story begins with The story begins Nearly all of Justice Scalia’s twelve 1996 dissents bore the twelve 1996 Scalia’s Nearly all of Justice at 751 (Scalia & Thomas, JJ., & Rehnquist, C.J., dissenting). C.J., & Rehnquist, JJ., & Thomas, 751 (Scalia at 221. 222. 223. 224. 229. 620 (1996). 517 U.S. 225. 228.Scalia dissents would illustrate Many other (2015). S. Ct. 2584 135 ___, ___ U.S. 227. It is only fair out that Justice to point Scalia issuedoccasionally respectful 226. Ironically, the only respectful dissent that Justice Scalia in 1996 filed was one that ISRESPECTFUL NTRIKIN C. Dissenting Discourse as C. Dissenting Discourse 1996–2016 Supreme Court Justice: argument,” his dissenting two decades of next the through pattern continued rhetoric, with 1996 and concluded D the doubt.” of the benefit York Legislature New but was who had expected to prevail, angry tone of someone the votes to write for the majority. unable to muster E was “preposterous,” the opinion year on watershed but Justice Scalia’s rhetoric, was aggressive yet to come. was the Court amendment a Colorado constitutional Court struck down protecting homosexuals against state or local laws preempting criticize Justice Stevens for writing “less a legal analysis than a manifesto of secularism” a positive hostility to religion,” that “announces analysis that “founder[s] on its own terms,” on its own terms,” analysis that “founder[s] replacement for the dissents of this type became increasingly rare beginning in 1996. in 1996. rare beginning increasingly dissents of this type became increasingly frequent his the disturbing decline of this brilliant jurist’s discourse and the But Court. outbursts of frustration with the (Scalia, J., dissenting). dissents, even in this period. dissenting). The Thomas, J., & Roberts, C.J. J., (Scalia, 2479 (2015) that our haphazard course of Establishment Clause decisions is governed by any principle,” Clause course of Establishment that our haphazard id. himself. only for he wrote suggested that this conclusion rested on an “illogical” premise, it was otherwise respectful suggested that this conclusion rested on an “illogical” premise, it was and temperate. that a pretrial detainee could support an excessive-force claim by showingthat a pretrial detainee could support an excessive-force that “objectively unreasonable” force had been used. 40357-aap_18-2 Sheet No. 67 Side A 06/11/2018 08:46:58 A 06/11/2018 67 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 67 Side B 06/11/2018 08:46:58 ROCESS Bowers P majority decided a decided 232 , Romer Lawrence v. Tex., 539 Tex., 539 v. Lawrence RACTICE ANDRACTICE P a challenge to an anti- to an a challenge 240 241 , overruled by overruled which was “nothing short 238 PPELLATE A He accused the He accused Bowers v. Hardwick Bowers 233 He called the holding that the He called the 236 and OURNAL OF OURNAL J ) 6/4/2018 3:17 PM Lawrence v. Texas Lawrence v. HE And he proclaimed that the Court had “no And he proclaimed Romer ELETE Justice Scalia’s excoriating dissent began this began this dissent excoriating Scalia’s Justice he Court’s portrayal of Coloradans as a society a society as of Coloradans he Court’s portrayal D Finally, he called the decision an act “not of Finally, he called the decision 234 230 OT N 239 O 235 517 U.S. at 636 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). dissenting). J., Thomas, C.J. & Rehnquist, J., at 636 (Scalia, U.S. 517 And he accused the Court of inventing “a novel and and “a novel And he accused the Court of inventing 1(D With characteristic prescience, he noted the apparent the apparent he noted characteristic prescience, With at 645 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 645 dissenting). J., Thomas, C.J. & Rehnquist, J., (Scalia, 651 at 647, dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 652 at 636 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 636 237 at 624 (quoting 1992 amendment to Colorado Constitution). Constitution). to Colorado amendment 1992 (quoting at 624 at 196. at 196. dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 653 The Court has mistaken a Kulturkampf for a fit of for a fit a Kulturkampf has mistaken The Court ESEND 231 Id. Id. Id. Id. Id. Id. Id. Id. Id. Romer, R ” As Justice Scalia predicted, the Court overruled As Justice Scalia predicted, the Justice Scalia continued with spleen-venting outrage, outrage, spleen-venting with continued Justice Scalia placing the Court’s prestige behind the proposition that prestige behind the proposition placing the Court’s 230. 233. 235. 236. 237. 238. 239. 240. 231. 232. (five-to-four decision), 186 (1986) 478 U.S. 234. 241. 558 (2003). 539 U.S. NTRIKIN of insulting.” but will.” of political judicial judgment, by feigning surprise that Scalia opened statute. Justice sodomy way: “ spite. between conflict of a state upheld the constitutionality which had decade earlier, sodomy. criminalizing statute the elite values of its members—including business” imposing all is “evil”—on homosexuals toward “animosity” the belief that Americans. that “[t] claiming ‘gay-bashing’” was “so to pointless, hate-filled fallen victim be comical.” false as to “a federal Constitution violated the Colorado amendment that “frustrate[d] Colorado’s proposition” facially absurd moral traditional American effort to preserve reasonable values.” doctrine to take the victory away from constitutional extravagant of “verbally disparag[ing] as bigotry and forces” traditional adherence to traditional attitudes,” seven years later in 242T discrimination. E of or was “as reprehensible as racial opposing homosexuality religious bias.” U.S. 558 (2003). (2003). 558 U.S. 40357-aap_18-2 Sheet No. 67 Side B 06/11/2018 08:46:58 B 06/11/2018 67 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 68 Side A 06/11/2018 08:46:58 set Bowers stare decisis 248 when refusing to when With characteristic characteristic With entails. 243 Justice Scalia devoted Justice 247 He pointed out that the . 853–60 (explaining considerations 853–60 246 Next, he challenged the . rendered a mere 17 years 17 years mere a rendered 249 250 Bowers , “ while chiding the majority for the majority while chiding while appearing to have no to have while appearing ’s extraordinary deference to precedent for the deference ’s extraordinary Bowers , 539 U.S. at 245 Casey Bowers stare decisis and its “preservation of judicially of judicially “preservation and its Bowers a decade earlier a decade 244 Then he refuted the majority’s reasoning reasoning Then he refuted the majority’s see Casey ) 6/4/2018 3:17 PM 243 251 ELETE D ). ISSENT OT ’ validation of laws based ’ validation of laws choices.on moral D N 539 U.S. at 587 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 587 U.S. 539 Roe O at 593–94 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). J., dissenting). Thomas, & C.J. Rehnquist, (Scalia, J., at 593–94 at 586–92 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). Thomas, C.J. & Rehnquist, (Scalia, J., at 586–92 stare decisis stare decisis 1(D . It has thereby exposed . It has thereby exposed Roe v. Wade Roe at 592 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting) (“[I]t does not J., dissenting) (“[I]t & Thomas, C.J. Rehnquist, at 592 (Scalia, J., at 597–98 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). Thomas, & C.J. Rehnquist, J., (Scalia, at 597–98 at 586–87 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). Thomas, & C.J. Rehnquist, J., (Scalia, at 586–87 at 586 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 586 at 590–91 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). Thomas, & C.J. Rehnquist, J., (Scalia, at 590–91 His first few paragraphs chastised the Court for the Court for chastised few paragraphs His first Bowers ESEND Id. Id. See id. Id. See id. Id. Id. Lawrence, Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). U.S. 505 Casey, v. S.E. Pa. of Planned Parenthood Casey R 242 State laws bigamy,against same-sex adult incest,marriage, bestiality, masturbation, adultery, fornication, prostitution, light likewise sustainable only in and obscenity are of laws is called into question by one of these Every single to cabin the effort makes no decision; the Court today’s . . . its holding. from scope of its decision to exclude them social current a of the disruption massive What order, therefore, the overruling of But then Justice Scalia conceded that he was not at all But then Justice Scalia conceded 251. 248. 250. 246. 247. 249. 242. 244. (1973); 113 410 U.S. 245. 243. ISRESPECTFUL NTRIKIN result-oriented expedient that it is.”). result-oriented expedient that it is.”). forth in surprise me . . . that the Court has chosen today to revise the standards of today to chosen has the Court . that . surprise me . against overruling Court had sidestepped the question whether homosexual sodomy whether homosexual Court had sidestepped the question was not right, and had effectively conceded it was a fundamental test. by applying the rational basis relations homosexual that consensual reasoning majority’s liberty interest based on qualify as a constitutionally protected to privacy with respect to awareness” of a right an “emerging adult sexual activity. compunction about overruling about overruling compunction surprised by the Court’s reasoning. D overruled Court had the ago.” invoking overruling that he claimed slippery-slope exaggeration, E overrule abortion rights,” invented five pages to defending selectively disregarding catastrophe. would effect a social 40357-aap_18-2 Sheet No. 68 Side A 06/11/2018 08:46:58 A 06/11/2018 68 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 68 Side B 06/11/2018 08:46:58 256 , ROCESS P Bowers RACTICE ANDRACTICE P 253 PPELLATE United States v. Windsor A OURNAL OF OURNAL J ) 6/4/2018 3:17 PM “This proposition,” he wrote, “is so out of “is so out of he wrote, “This proposition,” HE 252 ELETE D OT N 255 O and then warned of the coming apocalypse: of the coming and then warned 1(D 254 at 599 (Scalia, J., Rehnquist, C.J. & Thomas, J., dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 599 dissenting). J., Thomas, & C.J. Rehnquist, J., (Scalia, at 602 J., dissenting). Thomas, & C.J. Rehnquist, J., (Scalia, at 604–05 ESEND society we know—that it requires little discussion,” and little discussion,” it requires society we know—that Id. Id. Id. Id. R Today’s opinion dismantles the structure of constitutional the structure of constitutional opinion dismantles Today’s between be made a distinction to law that has permitted insofar as formal unions, heterosexual and homosexual If moral is concerned. recognition in marriage is “no legitimate conduct disapprobation of homosexual . . . that conduct, state interest” for purposes of proscribing and if, as the Court coos (casting aside all pretense of finds overt expressionsexuality in neutrality),“[w]hen conduct the conduct can be with another person, intimate bond that is but one element in a personal more possiblybe for . what justification could there . . enduring,” denying the benefits of marriage to couples homosexual . . . libertyexercising “[t]he by protected the Constitution”? issue of homosexual This case “does not involve” the belief that principle and marriage only if one entertains the Court. decisions of this with the do logic have nothing to assures us,comfortingly Many will hope that, as the Court this is so. The Texas The Texas statute undeniably further seeks to of the belief its citizens certain that forms of are sexual behavior “immoralinterest. . the same and unacceptable,” . laws bigamy, against fornication, furthered by criminal bestiality,adultery, adult incest, obscenity. and was a legitimate held that this state interest. The Court . . This effectively conclusion. . today reaches the opposite legislation. all morals decrees the end of It would be a decade before Justice Scalia’s predicted a decade before Justice Scalia’s predicted be It would any 252. 253. 254. 255. 256. 744 (2013). 570 U.S. NTRIKIN apocalypse threatened again in apocalypse he went on to explain the consequences of the Court’s error: the Court’s error: consequences of on to explain the he went homosexual of signing on to “the so-called He accused the Court agenda,” 244T for sodomy out singling basis for rational no Texas had that penalties. criminal jurisprudence with the our jurisprudence—indeed, accord with of E 40357-aap_18-2 Sheet No. 68 Side B 06/11/2018 08:46:58 B 06/11/2018 68 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 69 Side A 06/11/2018 08:46:58 258 He 261 rimary After the After 257 while deriding as 262 260 ) 6/4/2018 3:17 PM 245 259 ELETE D ISSENT OT D N O , 570 U.S. at 754 (noting that the trial court, without opposition, had at 754 (noting that the trial court, had , 570 U.S. without opposition, 263 1(D at 769–75. at 769–75. & Roberts, C.J., dissenting). & Thomas, JJ., (Scalia at 778 & Roberts, C.J., dissenting). & Thomas, JJ., (Scalia at 779 & Roberts, C.J., dissenting). & Thomas, JJ., (Scalia at 782 at 784 (Scalia & Thomas, JJ., & Roberts, C.J., dissenting). & Roberts, C.J., dissenting). & Thomas, JJ., (Scalia at 784 ESEND Windsor Id. Id. Id. Id. Id. R This case is It is about power in several respects. about the the and power to govern themselves, power of our people opinion Today’s to pronounce the law. of this Court of with the predictable consequence aggrandizes the latter, power to decide this We have no the former. diminishing power under the case. even if we did, And we have no this democraticallyinvalidate Constitution to adopted both points spring forth legislation. The Court’s errors on the same diseased root: an exalted conception of the from America. role of this institution in But he did not stop there. He mocked the Court’s reasoning But he did not stop there. He mocked Justice Scalia dissented, his first paragraph setting the his first paragraph setting Justice Scalia dissented, wryly amusing,” and sarcastically asserted that “[r]elegating wryly amusing,” and sarcastically 257. one man a legal union between (defining “marriage” as “only § 7 (2012) 1 U.S.C. 258. 259. 260. 261. 262. 263. ISRESPECTFUL NTRIKIN and one woman as husband and wife,” and “spouse” as “only . . . a person of the opposite and “spouse” husband and wife,” and one woman as wife”). a or a husband sex who is “incomprehensible” the Court’s conclusion that adversarial Court’s the “incomprehensible” than are “prudential” rather aspects of Article III standing mandatory. Group). Advisory Bipartisan Legal House granted permissive intervention to the as “ status is a wondrous to ‘prudential’ requirement a jurisdictional Obama Administration’s Department of Justice declined to declined to of Justice Department Administration’s Obama a group representing the statute’s constitutionality, defend party. as an interested to intervene permitted was Congress the Court’s characterized he the merits, Then, before reaching that judicial supremacy” assertion of taking the case as “an at the (or rather enthroned) Court standing “envisions a Supreme empowered to decide all constitutional apex of government, in its role.” ‘primary’ questions, always and everywhere called the case “a contrivance,” D Act. Marriage of Defense the challenged which p because its unconstitutional held DOMA The Court the rest of his opinion: derisive tone for E state-sanctioned a subset of to treat effect were and purpose unequally. marriages 40357-aap_18-2 Sheet No. 69 Side A 06/11/2018 08:46:58 A 06/11/2018 69 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 69 Side B 06/11/2018 08:46:58 ROCESS P for for designed RACTICE ANDRACTICE P And then he criticized 268 to do so. Placing the the to do so. Placing PPELLATE us A accusing the majority of invoking the invoking the of majority accusing the 267 OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE ELETE D OT 265 N He called the Court’s justification for its holding for its holding Court’s justification He called the O 266 1(D 264 at 790–91 (Scalia & Thomas, JJ., & Roberts, C.J., dissenting). Roberts, C.J., dissenting). & JJ., & Thomas, (Scalia at 790–91 & Thomas, JJ., dissenting). (Scalia at 791 at 794 (Scalia & Thomas, JJ., dissenting). & Thomas, JJ., dissenting). (Scalia at 794 . at 785 (Scalia & Thomas, JJ., & Roberts, C.J., dissenting). & Roberts, C.J., dissenting). & Thomas, JJ., (Scalia . at 785 ESEND Id Id. Id. Id. Id. R [I]f Congress cannot invoke our authority . . . then its only its . then . . authority Congress cannot invoke our [I]f recourse is to President directly. confront the Unimaginable is not. Our system evil this is Constitution’s entirely anticipated political arm wrestling Constitution’s entirely arm political anticipated judicial receivership does not do the system into permanent a favor. And by the way, President loses the lawsuit if the the Court’s just as decree, but does not faithfully implement Congress’s statute, what implement he did not faithfully to heelthen? Only Congress can bring by him . . . what do Yes: a the you think? direct confrontation with President. confrontation. . . . If majorities in both Houses of Congress Houses of Congress in both . If majorities . . confrontation. care theyenough about the matter, have available waysinnumerable to compel without executive action a lawsuit—from refusing to confirm Presidential appointees says the (Nothing funding. “enforce of to the elimination Act” quite like “. . . or you will have money else.”) for little is crucial; Congress But the condition must care enough to not act against the President itself, merely enough to instruct its lawyers to ask Justice Scalia’s tone was no less biting when he turned to Justice Scalia’s tone was no less Justice Scalia was so incensed and exasperated about the so incensed and exasperated Justice Scalia was 264. 265. 266. 267. 268. NTRIKIN “rootless and shifting,” basis for its as the process’” “dread words ‘substantive due so. decision without expressly saying the merits. the Court for making “only passing mention” of the arguments of the arguments “only passing mention” the Court for making 246T they whenever requirement the to ignore courts enabling device, idea.” And he to say, a good is it ‘prudent’—which believe short of “miles as falling authorities the Court’s cited denigrated III that an Article notion the counterintuitive supporting the between without disagreement can exist ‘controversy’ parties.” a to incite was ready he that implications jurisdictional the compel by which Congress might constitutional showdown DOMA: with its will by defending comply to Executive Branch E 40357-aap_18-2 Sheet No. 69 Side B 06/11/2018 08:46:58 B 06/11/2018 69 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 70 Side A 06/11/2018 08:46:58 the the this 269 hostes , 272 see them.” they He asserted that to defend defend that to He asserted He warned readers not to be 270 And then, in an abundance of irony And then, in 271 ) 6/4/2018 3:17 PM 247 , enemies of the human race. of the human , enemies ELETE D ISSENT OT . In the majority’s judgment, any resistance judgment, . In the majority’s to its D N O to “disparage,” “injure,” “degrade,” “demean,” and 1(D at 797 (Scalia & Thomas, JJ., dissenting). & Thomas, JJ., dissenting). (Scalia at 797 (emphasis in original). dissenting) JJ., & Thomas, (Scalia at 797–98 at 796 (Scalia & Thomas, JJ., dissenting) (emphasis in original). & Thomas, JJ., dissenting) (Scalia at 796 ESEND Id. Id. Id. Id. R purpose our“humiliate” fellow human beings, our fellow citizens, an Act for supporting who are homosexual. All that, simply that did no more than codify an aspect of marriage that had of its for in our society most been unquestioned existence—indeed, had been unquestioned in virtually all one thing history. It is societies for of human virtually all for a society to elect change; it is another for a court of law change by who oppose it to impose adjudging those humani generis for today’s door, majority assure us, as it is going out the to to give formal recognition that a constitutional requirement what has here—when to same-sex marriage is not at issue on how superior the preceded that assurance is a lecture is majority’s moral judgment in favor of same-sex marriage judgment againstto the Congress’s hateful moral it. I To hurl such accusations so casually demeans accusations so casuallyTo hurl such demeans institution To pale of reasoned disagreement. the holding is beyond a presumptivelyof invalidation high-handed question its with majority is sure) valid statute is to act (the But he was not quite done. Justice Scalia enumerated the Court’s specific words used words used specific the Court’s enumerated Justice Scalia 269. 270. 271. 272. ISRESPECTFUL NTRIKIN fooled by the majority’s “naked declaration” confining its confining declaration” “naked fooled by the majority’s married couples who were already lawfully holding to same-sex he wrote under state law. “It takes real cheek,” D imagined, he perhaps, defenders, DOMA’s by advanced Act’s of the the illusion to maintain it is harder “because lynch mob of a wild-eyed members as unhinged supporters their views as first describes when one and DOMA’s supporters, of motives the perceived to describe these that he was “sure further explanation) he declared (without quite untrue.” accusations [were] own separate opinions, he let his tone of considering the habitual hostile statement: remarkably loose this E prefer would “who those is not to demean marriage” “traditional other arrangements.” 40357-aap_18-2 Sheet No. 70 Side A 06/11/2018 08:46:58 A 06/11/2018 70 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 70 Side B 06/11/2018 08:46:58 He ROCESS 274 P 273 , once again “By formally “By formally 276 conceded that the RACTICE ANDRACTICE P Windsor and PPELLATE A He speculated that the Court had He speculated that In the end, he . This time the issue of whether of the issue . This time 275 278 Lawrence OURNAL OF OURNAL J ) 6/4/2018 3:17 PM Obergefell HE ELETE D OT And he predicted that “[t]he result will be a And he predicted that “[t]he N O 277 1(D at 798 (Scalia & Thomas, JJ., dissenting). & Thomas, JJ., dissenting). (Scalia at 798 & Thomas, JJ., dissenting). (Scalia at 799 & Thomas, JJ., dissenting). (Scalia at 800 at 802 (Scalia & Thomas, JJ., dissenting). & Thomas, JJ., dissenting). (Scalia at 802 at 800-01 (Scalia & Thomas, JJ., dissenting). JJ., & Thomas, (Scalia at 800-01 279 . at 799–800 (Scalia & Thomas, JJ., dissenting). JJ., & Thomas, (Scalia . at 799–800 ESEND Id. Id. Id Id. Id. Id. Id. R promise you this: The only thing that will “confine” the “confine” will you that onlything The this: promise get away of what it can holding is its sense Court’s with. Finally came 273. 274. 275. 276. 277. 278. 279. NTRIKIN issue was contentious, implicating complicated social and social complicated implicating contentious, issue was he believed the but matter, political views on a “fundamental” an robbing the winners of Court’s opinion “cheated both sides, from a fair and the losers of the peace that comes honest victory, defeat.” thought it “inevitable” that the Court would soon apply its that the Court thought it “inevitable” marriage, state laws prohibiting same-sex holding to invalidate edited paragraphs of the majority’sand even offered opinion how easily to demonstrate italics) with striketype and (complete do just that. the Court could debate over marriage—a judicial distortion of our society’s only to a ‘help’ in need of our clumsy debate that can seem of this institution.” member same-sex refuse to recognize states could constitutionally Scalia had was squarely before the Court, as Justice marriages Kennedy, who had writtenbeen predicting since 2003. Justice opinions in the majority 248T of insults to describe string his own then issued Justice Scalia “scatter-shot it was based on claimed opinion: He the Court’s argle-bargle.” . legalistic with complete them),” noises among . (federalism . . . rationales . of trail[s] “disappearing E “deliberately passages to be more and many written these state statutes down that would strike an opinion transposable” to marriages. of same-sex precluding recognition of an enemy marriage opposed to same-sex declaring anyone well every arms “the majority claimed, decency,” he human to its traditional marriage challenger to a state law restricting definition.” 40357-aap_18-2 Sheet No. 70 Side B 06/11/2018 08:46:58 B 06/11/2018 70 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 71 Side A 06/11/2018 08:46:58 . , TL 281 EWS , 530 , 530 N , A . 15, 19 . 15, 19 Then, Obergefell AILY ULL 286 , 280 J. D .B.B T See, e.g. Roberts’s Rules .S , ABA R , 135 S. Ct. at 2611–43. (does he write any other (does he write any other Stenberg v. Carhart Chief Justice Says He Backs Chief Justice Says He But Justice Scalia did did But Justice Scalia , 60 O 285 (noting that “[w]hen the Fourteenth (noting that “[w]hen . reflected his I-told-you-so his I-told-you-so reflected See Obergefell 282 blistering dissent Ready for Prime Time—Group Dynamics, Dissent Dynamics, Time—Group Ready for Prime , Debra Cassens Weiss, Cassens , Debra ) 6/4/2018 3:17 PM 249 See, e.g. dissent was certainly blistering in tone. ELETE D at 955 (Scalia, J., dissenting). J., dissenting). (Scalia, at 955 ISSENT As far as he was concerned, the answer to the concerned, the As far as he was OT (Scalia & Thomas, JJ., dissenting) Id. (Scalia & Thomas, JJ., dissenting) Thomas, JJ., & (Scalia D N , 135 S. Ct. at 2626 (Scalia & Thomas, JJ., dissenting). JJ., & Thomas, (Scalia Ct. at 2626 S. , 135 , 135 S. Ct. at 2604–05. Ct. at 2604–05. S. , 135 O 284 Obergefell 1(D declaring the Court’s decision “a threat to American to American “a threat decision Court’s the declaring at 2628 at 2629 at 2629 Jeff Bleich & Kelly Klaus, Jeff Bleich ESEND 283 Obergefell Id. Obergefell Cf. Id. R Chief Justice Roberts wrote the principal dissent, but dissent, wrote the principal Roberts Chief Justice 284. 285. 280. 281. pages. The four dissents span thirty-two 282. 283. Justice Scalia himself used this phrase in his dissent in 286. ISRESPECTFUL NTRIKIN Consensus, Even If It Means Putting Off Issues for A Later Day Off Issues for A Later If It Means Putting Even Consensus, and Intrigue: A 1999–2000 Look at the Supreme Court, Ironically, Chief Justice Roberts has repeatedly expressed his belief that the Court should his belief that the Court should Justice Roberts has repeatedly expressed Ironically, Chief avoid splintered decisions. (Jan.–Feb. 2007), https://www.the atlantic.com/magazine/archive/2007/01/robertss-rules/3 https://www.the 2007), (Jan.–Feb. 05559/. 135 S. Ct. at 2630 (Scalia, J., dissenting) (“The [majority] opinion is couched in a style that a style opinion is couched in [majority] dissenting) (“The (Scalia, J., 2630 Ct. at 135 S. is as pretentious as its content is egotistic.”). U.S. 914, 945–46 (2000), in which the Court struck down a Nebraska statute banning an in which the Court struck (2000), down a Nebraska 945–46 914, U.S. abortion procedure. (Aug./Sept. 2000) (referring to Scalia’s 2000) earlier “ (Aug./Sept. dissenting)). 461 (2000) (Scalia, J., 428, v. United States, 530 U.S. kind?)” in Dickerson Justice Scalia’s mood, democracy.” of his the perspective was easy from the Court question before jurisprudence. constitutional originalist reasoning, the majority’s disgust with his outright demonstrating He even injected meta- the Court’s opinion. he quoted from dissent—as if they were bubble thinking parentheticals into his strip: thoughts in a comic D constitutionally were states that holding Court, for the wrote marriages. to recognize same-sex refusing barred from dissented separately. and Alito each Scalia, Thomas, Justices dissent” “blistering Justice Scalia’s E he this simple approach. Instead, setting out not stop after to marry suggestion that the freedom mocked the Court’s including those of intimacy, as well, protects other freedoms at “the spirituality. He expressed astonishment expression, and in today’s judicial Putsch.” hubris reflected (May 26, 2016), http://www.abajournal.com/news/article/chief_justice_says_he_backs_ http://www.abajournal.com/news/article/chief_justice_says_he_backs_ (May 26, 2016), Rosen, Jeffrey consensus_even_if_it_means_putting_off_issues_f; Amendment was ratified in 1868, every State limited marriage to one man and one one and State limited marriage to one man ratified in 1868, every was Amendment and asserting that the Courtwoman,” had “no basis down a practicefor striking that is not text”). Amendment’s Fourteenth the expressly prohibited by 40357-aap_18-2 Sheet No. 71 Side A 06/11/2018 08:46:58 A 06/11/2018 71 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 71 Side B 06/11/2018 08:46:58 ROCESS P 287 RACTICE ANDRACTICE P (footnotes omitted; parentheses, a freedom, but anyone but anyone a freedom, is PPELLATE A dislikes. Hardly dislikes. a distillation really OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE ELETE D likes. And the Equal Protection Clause, as likes. And the Equal Protection (Scalia & Thomas, JJ., dissenting) & Thomas, JJ., (Scalia OT that this Court N O really 1(D at 2630 ESEND Id. R of essence. If opinion is correct that the the two clauses right,” of [a] definition “converge in the identification and that is onlybecause the majority’s and dislikes likes are I The could go on. world does not predictably compatible.) inspirational pop- expect logic and precision in poetry or The stuff in thephilosophy;it demands them law. this Court’s has to diminish opinion contained in today’s clear thinking and sober analysis. reputation for It is one thingIt is separate for dissenting or concurring evenextravagances, to contain opinions silly it is something and expression; of thought extravagances, Of course so. of the Court to do official opinion else for the showythe opinion’s often profoundly are profundities nature of marriage “The through its is that, incoherent. other together can find bond, two persons enduring freedoms, and such as expression, intimacy, (Really? Who ever thought that intimacy and spirituality.” spirituality [whatever that were freedoms? And if means] Intimacy of Freedom is, one would think intimacy is Ask the nearest expanded by marriage. abridged rather than Expression, sure enough, hippie. employed today, identifies nothing except a difference in today, nothing employed identifies treatment in a long-lasting marriage will attest that that happyin a long-lasting state than expands, what one can prudently constricts, rather a better . . . from we are told, can “rise Rights, say.) constitutional imperatives how understanding of informed (Huh? our own era.” urgent in define a liberty that remains how of understanding How can a better informed [whatever that define imperatives means] constitutional give an urgent libertymind], [never that means] [whatever any And we are told that, particular “[i]n birth to a right?) case,” either or Due Process the Equal Protection Clause “may capture the essence be thought to right of [a] in a other, accurate and comprehensivemore way,” than the “even as the two Clauses may converge in the identification (What say? What possible and definition of the right.” “capture” in“essence” does substantive due process an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court 287. NTRIKIN 250T E 40357-aap_18-2 Sheet No. 71 Side B 06/11/2018 08:46:58 B 06/11/2018 71 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 72 Side A 06/11/2018 08:46:58 ISSENTS D S United States ’ 290 CALIA S 288 USTICE 289 J Scalia & Thomas, JJ., dissenting). JJ., Thomas, Scalia & dissenting). 2630 n.22 ( n.22 2630 MPACT OF I Five Unexpected Arguments in Scalia’s Same-Sex Marriage Marriage in Scalia’s Same-Sex Arguments Five Unexpected ) 6/4/2018 3:17 PM 251 & Thomas, JJ., ELETE D (June 26, 2015 5:00 PM EDT), http://www.msnbc.com/msnbc/five- (June 26, 2015 ISSENT OT D N , 135 S. Ct. at COM O , Eric Levitz, What will they think of his legacy? of his think What will they dissent would be among the last of his injudicious last the dissent would be among 1(D 291 SSESSING THE at 2631 (Scalia (Scalia at 2631 and read the intemperate words written by their read the intemperate and ESEND Id. Obergefell See, e.g. R , MSNBC. The voice of the majority may be that of force triumphant, the majority may be that The voice of of and recking little of the hour, the plaudits content with hide my head in a bag. The Supreme United Court of the bag. The Supreme head in a hide my fromStates has descended legal reasoning the disciplined mystical the to Story and Joseph of John Marshall cookie. aphorisms of the fortune the People a from With each decision of ours that takes each decision that is left to them—with question properly unabashedly based not on law, but on the “reasoned of this Court—we one of a bare move majority judgment” our impotence. of step closer to being reminded If, even as the price to be If, even as for a fifthpaid ever joined vote, I “The Constitution that began: Court the for an opinion liberty liberty that within its reach, a to all promises includes certain rights specific that allow persons, within a lawful realm, to define and express their identity,” I would Of course, Justice Scalia could not have known that his Of course, Justice Scalia could But Justice Scalia did not stop Scalia did But Justice he In a footnote, there. III. A 291. had lost track interviews that he in joked often and Justice Scalia had nine children 290. 289. 288. ISRESPECTFUL NTRIKIN of how many grandchildren he had. had. he grandchildren many of how Dissent ellipses, brackets, and emphasis in original). ellipses, brackets, and emphasis in Obergefell now. Regrettably, his many dissents. But we know that look through the will someday descendants Reports ancestor. And in characteristic fashion, Justice Scalia felt compelled to compelled fashion, Justice Scalia felt And in characteristic phrase: and quotable with a ringing, memorable, leave the reader D in Justice passage offensive the most perhaps this was To many, dissent. extraordinarily offensive Scalia’s Court’s attack on the sarcastic an unusually pointed, leveled reasoning: E unexpected-arguments-scalias-dissent (describing dissent as “brimming with vitriolic to its analysis). responding snark” and 40357-aap_18-2 Sheet No. 72 Side A 06/11/2018 08:46:58 A 06/11/2018 72 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 72 Side B 06/11/2018 08:46:58 19 19 294 “the “the Yet Even ROCESS 295 P ISSENTS 297 Id. SSAYS AND D E 296 Asked which of his which of Asked THER . O . (2016). 294 294, B.J. EX PINIONS AND RACTICE ANDRACTICE O P , 79 T , 79 ANDMARK ITERATURE AND PPELLATE L L https://www.supremecourt.gov/publicinfo/ https://www.supremecourt.gov/publicinfo/ A at 3. at 3. Others found him and engaging Id. 298 note 29, at 1499. at 29, note AW AND EGACY OF available at ,L The Justice Scalia I Knew I Scalia Justice The supra OURNAL OF OURNAL , :AL J (“But I have never been custodian of my legacy. When I’m of my legacy. When (“But I have never been custodian ) 6/4/2018 3:17 PM HE although some already predict that “the already although some OURT ARDOZO ELETE C D 293 note 97 note S note 124, at 864. at 864. note 124, ’ A. The Law Without Justice Scalia Justice Scalia Without A. The Law OT N. C sometimes even “charming and . . . riotously even “charming sometimes N O supra 299 supra CALIA 292 1(D John G. Browning, G. Browning, John 36 (1931). , S , (internal quotation marks and citation omitted). citation marks and (internal quotation ENJAMIN ESEND E.g. Id. Ginsburg Conversation E.g. R the morrow. dissenter The speaks his and to the future, through the that will carry pitched to a key voice is years. Justice Ginsburg recently observed that the Supreme Court Court Supreme that the recently observed Justice Ginsburg The extent of Justice Scalia’s influence will not be known influence will not be known Scalia’s The extent of Justice 293. 294. 292. B 297. 299. 298. Thoughts About a Former U.S. (ret.), Some the Ct. of John Paul Stevens, J., Sup. 295. Scalia, 296. Senior, DDRESSES NTRIKIN (Keven A. Ring ed., 2016). 2016). ed., A. Ring (Keven (characterizing the private Scalia as “a witty, engaging person with the courtly manners of (characterizing the private Scalia as “a witty, engaging Old World gentleman and a singular devotion to his large family”). an A decisions he thought posterity would view as “heroic,” Justice Scalia my responded, “Oh, the be may now I years from 50 all I know, for know, You no idea. goodness. I have was regarded as: ‘He early-21st century, who’s Justice Sutherland of the late-twentieth and care.” don’t I And view.’ the old old fogey, an side of everything, on the losing Colleague at 2–3 (Apr. 25, 2016), speeches/JPS%20Speech%20Washington%20University%20in%20St%20Louis%20Schoo that “Nino’s friendship then Justice Stevens noted with l%20of%20Law_04-25-2016.pdf. more with his views and those who his colleagues, including both those who disagreed views, is legendary.” regularly shared his The Justice himself once confessed his hope that “at least some” his hope that “at least some” once confessed The Justice himself opinions. majority become someday of his dissents would that reporting Justice Scalia’s death, has changed since Scalia.” place without our lively Justice Court is a paler with Justice Scalia on Justice Stevens, who often disagreed for his friendship and him constitutional issues, remembered spontaneous sense of humor. personable, 252T for generations, of his written opinions to offers “the potential enduring form” future.” and decisions in the near and distant shape doctrines E to years later, he professed care little about his legacy. dead and gone, I’ll either be sublimely happy or terribly unhappy.”) either be sublimely happy or terribly I’ll dead and gone, 40357-aap_18-2 Sheet No. 72 Side B 06/11/2018 08:46:58 B 06/11/2018 72 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 73 Side A 06/11/2018 08:46:58 , html. COM OTRE OTRE . overruled overruled , 501 U.S. , 501 U.S. , LII. oscar During , 72 N , 72 _ the very the very 303 302 Payne v. Tenn., Tenn., Payne v. justice _ Id. , http://www.slate.com/ versus _ overruled by overruled Johnson v. United States, ___ Johnson overruled by Payne overruled Scalia’s Sermonette Scalia’s grover on which his dissenting opinions on which his _ that begs the question of of that begs the question note 97 (reporting that Justice Scalia 305 (Dec. 6, 2006) 6, (Dec. issues flamboyant judicial rhetoric and colorful Citizens United v. Fed. Election Comm’n, Election Comm’n, Citizens United v. Fed. overruled by supra LATE , S note 5, at 39 (“In our law schools, it is not necessary to note 5, at 39 (“In our law schools, overruled by And while Justice Scalia claimed to to Scalia claimed And while Justice ) 6/4/2018 3:17 PM 253 304 have his separate opinions influenced and influenced opinions his separate have See by Type Scalia Grouped Writings by Justice supra Justice Grover Versus Justice Justice Grover Versus Breyer Sell Oscar: Scalia and note 300 (reporting that Justice Scalia “writes his dissents for the ELETE note 6, at 97. D 301 , 135 S. Ct. 2551; Grady v. Corbin, 495 U.S. 508 (1990), 508 U.S. Corbin, 495 2551; Grady v. Ct. S. , 135 ISSENT Scalia, OT D N supra politics/jurisprudence/2006/12/justice O _ supra supra see . (referring to “ 863 (1997) 863, 1(D But how But and _ , Michael S. Paulsen & Steffen N. Johnson, N. Johnson, Steffen S. Paulsen & , Michael EV 300 ESEND Dahlia Lithwick, E.g. R And Antonin Scalia’s constitutional Oscar the Grouch—frustrated and Grouch—frustrated Scalia’s constitutional Oscar the Antonin And L. R While Justice Scalia’s dissents were frequently cited for were frequently dissents Scalia’s While Justice . Sykes v. United States, 564 U.S. 1 (2011), (2011), U.S. 1 United States, 564 v. Sykes 303. Kapgan, 304.many dissents reveals that only six of the The author’s independent analysis 305. Lithwick, 300 302. 301. The following analysis uses the Scalia opinions by Cornell’s of categorization United States v. Dixon, 509 U.S. 688 (1993) (Scalia, J.); Austin v. Mich. Chamber of Chamber Austin v. Mich. J.); (Scalia, (1993) U.S. 688 509 Dixon, States v. United ISRESPECTFUL AME NTRIKIN 558 U.S. 310 (2010); S.C. v. Gathers, 490 U.S. 805 (1989), 805 U.S. 490 S.C. v. Gathers, 310 (2010); 558 U.S. by 652 (1990), U.S. Commerce, 494 808. In none of the six overruled cases was Justice Scalia the lone dissenter. And four were the overruled in the same two opinions, reducing have yet prevailed to just four. (The research and analysis supporting the conclusions with the author.) reported in this note are on file 501 U.S. 808 (1991); Booth v. Md., 482 U.S. 496 (1987), U.S. Booth v. Md., 482 501 U.S. 808 (1991); writing” that “make headlines” and terming Scalia “the master of the eminently quotable terming Scalia “the master of the eminently quotable writing” that “make headlines” and expressed legal argument”). provocatively quip, the arresting turn-of-phrase, the Justice Scalia personally authored eventually commanded a majorityeventually commanded during his lifetime. Justice Scalia personally authored See U.S. ___, 135 S. Ct. 2551 (2015) (Scalia, J.); James v. United States, 550 U.S. 192 (2007), 192 (2007), U.S. United States, 550 v. James (Scalia, J.); (2015) Ct. 2551 S. ___, 135 U.S. overruled by Johnson https://www.law.cornell.edu/supct/justices/scalia.dec.html (reporting 338 majority and (reporting 338 majority https://www.law.cornell.edu/supct/justices/scalia.dec.html opinions, 270 dissents, and forty-eight opinions plurality opinions, 385 concurring 1,041). total of in part, for a dissenting part and concurring in Lithwick analogized Justice Breyer to a “jurisprudential Grover—sweet and optimistic and a “jurisprudential Grover—sweet and optimistic Justice Breyer to Lithwick analogized he’ll sell us . confident at a his constitutional theory,on one lawyer . . eager-to-please— articles/news case books,” and concluding that, while it might be still while it might be too late to convince lawyers, “he’s concluding that, and case books,” the law students”); Senior, hoping to win over Legal Information Institute. D fact that they were dissents demonstrates that he often fell short that he often demonstrates they were dissents fact that his reasoning. to accept his colleagues of persuading a the Court would embrace only of a majority his lifetime, the Justice hundreds of dissenting opinions handful of the personally authored. for “law students,” write his dissents of persuasion. as instruments their lasting value WorldviewsVery Different Constitutional time. misunderstood, yet somehow more lovable for it—doesn’t try even to close the deal. He will do that.” He’s confident history vindicate him. doesn’t need us to D funny.” law? shaped the press, in the popular rhetoric, especially their colorful E wrote for law students because “they will read dissents that are breezy and have some will read dissents that are breezy and have some wrote for law students because “they thrust to them”); 40357-aap_18-2 Sheet No. 73 Side A 06/11/2018 08:46:58 A 06/11/2018 73 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 73 Side B 06/11/2018 08:46:58 , An An The . 223, . 223, http:// INKLER EV ROCESS W P Indeed, Indeed, L. R 307 DAM A 273 & n.17 (2013) 273 & n.17 (2013) demonstrates , Jeffrey Rosen, , Jeffrey Rosen, 306 AMPBELL (Nov. 14, 2014), (Nov. 14, MERICA RACTICE ANDRACTICE 19 C see also A P See, e.g. See, LATE RMS IN , S A (Sept. 23, 2007), https://www.nytimes PPELLATE EAR AutumnMcAllister, Fox & Stephen R. A B IMES He would constantly remind them that it takes constantly would He T but see IGHT TO , N.Y. R OURNAL OF OURNAL J ) 6/4/2018 3:17 PM ‘Rule of Five.’ of Five.’ ‘Rule HE VER THE O ELETE note 6, at 97; 6, note D OT What, then, does he leave behind? does he leave What, then, N ATTLE O supra supra B. Justice Scalia’s Judicial Perspectives Judicial Perspectives B. Justice Scalia’s 308 B Brennan “famously used to tell his law clerks that the most important ‘law’ 1(D HE :T ESEND R Beyond his love of the battle in judicial decisionmaking of the battle in judicial decisionmaking Beyond his love The frequency of Justice Scalia’s dissents Scalia’s of Justice frequency The 308. Kapgan, 307. Justice 306. Scalia was dissents than Justice of the Court to write more member The only other UNFIGHT NTRIKIN Eagle Soaring: The Jurisprudence of Justice Antonin Scalia, of Justice Antonin Jurisprudence Eagle Soaring: The (telling the story in more detail). Dissenter: JusticeJohn Paul Stevens G Supreme Court Justices Are Judges Supreme Not Really www.slate.com/articles/news_and_politics/jurisprudence/2014/11/supreme_court_justices_ are_not_judges_they_rule_on_values_and_politics_not.html; assign students the writings of prominent [to explain] academics the principal controversies controversies appear in the opposingof legal method or of constitutional law. Those studied from that text.”). be can itself, and Court Supreme opinions of the as a prolific writer. well known was who Justice Stevens, Court was the at the Supreme five justices for the court to reach a decision and they should never forget it.” Eric Segall, his reluctance to follow—or perhaps failure to appreciate— perhaps failure to follow—or his reluctance of Five.” “Rule Brennan’s all-important Justice of Scalia’s not . . . one [was] his colleagues “persuading seem[ed] style his with which an objective even strengths—or concerned.” sarcasm and scornand his use of aids, Justice as rhetorical He was aknown for four judicial perspectives. Scalia was well who textualist statutory originalist. He was a constitutional history as an aid to resolving use of legislative objected to the dictionaries consulted he regularly ambiguities. But statutory And he was generally a statutory language. when interpreting to agency interpretation. strong proponent of judicial deference books, articles, speeches, In each of these areas, Justice Scalia’s the philosophies that and opinions shaped the law by influencing of his dissents have upon, even though the bulk courts draw failed to carry the day. 254T E .com/2007/09/23/magazine/23stevens-t.html (notingStevens “files more that Justice .com/2007/09/23/magazine/23stevens-t.html his colleagues”). any of opinions than dissents and separate 225 (1997) (“It may be . . . that Scalia’s failure to build a consensus on the Court will, in on the Court failure to . that Scalia’s build a consensus . . be may 225 (1997) (“It the end, matter very little. Instead, it is his intellect, his legal principles, and his writing ability that will be his legacy to the Court.”). 40357-aap_18-2 Sheet No. 73 Side B 06/11/2018 08:46:58 B 06/11/2018 73 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 74 Side A 06/11/2018 08:46:58 , 92 ” and The 312 note 124, at at note 124, . He wondered wondered . He technology, supra supra During a 2006 debate Scalia, see note 300 (quoting Justice Scalia) note 300 311 supra supra http://www.npr.org/2016/02/14/466744465/originalism-a- ) 6/4/2018 3:17 PM 255 Beyond the Text: JusticeBeyond the Text: Scalia’s Originalism in Practice Lithwick, He sometimes quipped that his originalist quipped He sometimes ELETE He rejected the view that the Constitution is a that the Constitution view He rejected the note 124, at 853–56 (identifying and criticizing 124, at 853–56 scholars he note D . 1945, 1945 (2017) (referring to Justice Scalia as “the leading to Justice Scalia as “the leading (2017) (referring 1945 . 1945, 310 ISSENT OT 309 EV D N available at “‘That’s the living Constitution I am talking about, and it’s the one I Kyllo v. United States, 533 U.S. 27, 33–34 (2001) (Scalia, J.) (opining 27, 33–34 533 U.S. v. United States, Kyllo Id. O , supra L. R Id. 1(D ‘You are misquoting me. . . . I was describing the argument. I was describing of the in favor . . ‘You are misquoting me. AME ESEND “The Constitution that I interpret and apply is not living but dead, or as I prefer to “The Constitution that I interpret and apply is not living but dead, or See, e.g. D t would be foolish to contend that the degree of privacy secured to citizens by the to citizens by the secured of privacy t would be foolish to contend that the degree R Justice Scalia was especially well known for his views for his views well known Scalia was especially Justice Justices are decisions suggest that most The Court’s recent . “[i] 311 309. Michael D. Ramsey, 310. Scalia, 312. ISRESPECTFUL OTRE NTRIKIN that of unaffected by the advance entirely has been Fourth Amendment holding that use of heat-sensing technology outside defendant’s home to detect possible defendant’s home of heat-sensing technology outside holding that use search). Amendment to Fourth amounted operation inside marijuana-growing judicial theorist and advocate of originalism of his era”); of judicial theorist and advocate 862–64 (explaining his support for constitutional originalism despite its faults, but . . . conceding that “in a crunch I may prove a faint-hearted originalist. I cannot imagine flogging”). punishment of the statute that imposes upholding a considered “non-originalists”). living Constitution—that it’s a living organism that must grow or become brittle and snap. . . . is idiotic.’” That aloud how “a Constitution for the death penaltythat now explicitly allowed clearly it.” prohibit[s] wish would die.’” call it, enduring. It means today not what current society, much less the court, thinks it the court, thinks less current society, much not what call it, enduring. It means today Considered: Things it was adopted.” All ought to mean, but what it meant when Originalism: A Primer on Scalia’s Constitutional Philosophy Public (Nat’l Radio broadcast Feb. 14, 2016), primer-on-scalias-constitutional-philosophy (quoting Justice Scalia). originalism morewith Justice Breyer, colorfully. He objected Justice Scalia explained thewhen the moderator asked whether he thought so-called “living Constitution” was “idiotic”: “ about constitutional interpretation. He believed that He believed interpretation. constitutional about in historical should be interpreted language constitutional to written words intended their Framers grasp how the context to be understood. he as if it were “dead,” but Constitution treated the philosophy it “enduring.” preferred to call relevant so that it remains the Constitution prepared to interpret to even Justice Scalia was willing And culture. to a changing of modern to the impact at least with respect bend on occasion, jurisprudence. Fourth Amendment technology on D Originalism 1. Constitutional consistent with document to be interpreted living, evolving changing times. E N 40357-aap_18-2 Sheet No. 74 Side A 06/11/2018 08:46:58 A 06/11/2018 74 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 74 Side B 06/11/2018 08:46:58 115th 115th 313 ROCESS P NTERPRETATION I HE :T AW RACTICE ANDRACTICE L P EADING While there is nothing new While there is nothing :R PPELLATE 314 A https://congressional.proquest.com/congress https://congressional.proquest.com/congress note 89, at 16. 16. at 89, note ARNER the U.S., Common-Law Courts in a Civil-Law the U.S., Common-Law https://tannerlectures.utah.edu/_documents/a-to- supra supra A. G available at available . . . . [T]his approach elicits both better approach elicits both . . . . [T]his OURNAL OF OURNAL RYAN J that governs, not the intent of the lawgiver . . . . Men may . Men . . . intent of the lawgiver that governs, not the ) 6/4/2018 3:17 PM available at available Justice Scalia would also end with the would also Justice Scalia &B HE law 315 ELETE D OT CALIA textualism N S O 16 (2012). 317 Hearings on the Nomination of Judge Neil Gorsuch, to be an Associate Associate to be an Neil Gorsuch, Hearings on the Nomination of Judge 1(D Antonin Scalia, J., S. Ct. of , Lake Cnty. v. Rollins, 130 U.S. 662, (noting 671 (1889) that “when the words EXTS T . NTONIN He explained his method this way: He explained his ESEND E.g. Id See R The exclusive reliance onThe exclusive reliance text when interpreting text is known as drafting and better decision-making. . . . Textualism, in its Textualism, . . . better decision-making.drafting and what the text says with ends begins and and purest form, tenets Its principal fairly the have guided implies. is . Textualism . . interpretation of legal texts for centuries. ends, relyingnot well designed to achieve ideological as it most objective criterion available: the accepteddoes on the had when the law was contextual meaning that the words enacted. Justice Scalia was the leading textualist of his era. He of his era. leading textualist Scalia was the Justice 316 EGAL L 315. 316. A 317. 313. hearings, During his confirmation that testified Gorsuch Judge he considered 314. NTRIKIN of a man express his meaning plainly, distinctly, and perfectly, we have no occasion to have no occasion we meaning plainly, distinctly, and perfectly, his of a man express of interpretation”). means any other to have recourse Justice of the United States Supreme Court Before the S. Comm. on the Judiciary on Comm. the S. Before Court States Supreme Justice of the United 2017), 21, 1st Sess. (Mar. Cong., himself a constitutional originalist, but he thought his approach could keep pace with the with the keep pace his approach could himself a constitutional originalist, thought but he modern world. ional/result/congressional/pqpdocumentview?accountid=147014&groupid=1087361&pgId say would what I (“And =b5531681-2674-401c-993c-55f861bf4043&rsId=1628CC1E0A7 to understand we have us changes and is the Constitution the world around doesn’t change, the Constitution and question apply it in light of our current circumstances.” (responding to from Senator Klobuchar)). System: The Role of United States Federal Courts in Interpreting the Constitution and Courts Federal of United States System: The Role 8–9, 1995), Laws 92 (Mar. intend what they will; but . . . only the laws that they enact bind us.”). In his early years on years In his early us.”). enact bind only the laws that they will; but . . . intend what they as time went on he Scalia consulted legislative history but the bench, Justice on occasion, refused to consider it at all. Eventually, he declined part of an to join any that opinion discussed legislative history. Morrison, z/s/scalia97.pdf (“It is the believed that judges should focus on the text of a statute rather should focus on the text of believed that judges of meaning. sources than extrinsic text. 256T on the depends originalism Scalia’s of Justice fate ultimate Justice Gorsuch. including of his successors, jurisprudence Legislative History Disregard of Textualism and 2. Statutory with the the task of statutory interpretation about beginning “plain language,” E OF 40357-aap_18-2 Sheet No. 74 Side B 06/11/2018 08:46:58 B 06/11/2018 74 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 75 Side A 06/11/2018 08:46:58 . , EV 321 IMES .L.R CALIA IN S ASH , N.Y. T .W USTICE EO Should the Supreme Should the Supreme Be that as it it as that Be ?J 323 66 G 324 ISTORY But the influence of But the influence H 320 at 319–20. 319–20. at EGISLATIVE Justice Scalia’s Fading Legacy L note 89, at 16. at note 89, EST), http://theconversation.com/justice-antonin- see also id. also id. see inauthentic.” OOD IS 100 (2007) (recognizing that “Justice Scalia has PM G supra On the other hand, his rigid textualist rigid textualist other hand, his On the HAT Justice Antonin Scalia: More Quotable Than Influential Scalia: More Quotable Than Justice Antonin per se PPEALS 318 ) 6/4/2018 3:17 PM 257 A ,W but Not Statutory Legislative History? Linda Greenhouse, he new textualists, particularly Justice Scalia, refuse to consider he new textualists, particularly Scalia, refuse to consider Justice ELETE note 319, at 14; at note 319, Morrison, Morrison, D note 124, at 856–57. At least one scholarnote 124, at 856–57. has aptly questioned how note 314, at 98 (“[S]o-called strict constructionism . . . is a degraded note 97 (reporting Justice Scalia’s 2013 statement that the Court then then that the Court 2013 statement Justice Scalia’s note 97 (reporting ISSENT ERKEN OT he had made progress in persuading fellow fellow he had made progress in persuading all analogous to legislative history. all analogous to D N but see supra O OURTS OF , 322 319 see also see L. G supra (Feb. 15, 2016 10:31 10:31 2016 (Feb. 15, supra C supra 1(D The Federalist Robert Schapiro, Robert Schapiro, ERKEN OSEPH ESEND See R Justice Scalia’s textualist approach did not mean that he mean that did not approach textualist Scalia’s Justice the federal appellate ago that a decade A survey concluded EDERAL 15,2018),https://www.nytimes.com/2018/03/15/opinion/justice-antonin-scalia-legacy F 323. Senior, 318. Scalia, 321. G 320. J 322. 319. Scalia, ISRESPECTFUL ONVERSATION NTRIKIN scalia-more-quotable-than-influential-54721 Scalia’s “attempt to (noting that Justice success”). lasting . failed to achieve . reorient interpretationConstitution . of the repeatedly inveighed against the use of legislative history in cases where the statute is history in cases where use of legislative repeatedly inveighed against the unambiguous”); paid “much more attention to the legislative and “much less [to] words of a statute” were discussing . two thirds of [which] . . history” than did “opinions from the eighties, committee reports and floor statements and all that garbage,” a change he believed he had helped influence); 1301, 1302 (1998) (“[T] (1998) 1301, 1302 such history of the but do consider context the debating history of statutes as relevant in great detail.”). amendments, sometimes Constitution and its may, he certainly “narrow[ed] the battlefield.” he certainly “narrow[ed] may, his skepticism was both “discernible” and “significant” to some and “significant” to some was both “discernible” his skepticism approach to suggested that his cautious observers, who lasting influence.” be his “most might legislative history not win on although he might speculated that Justice Scalia once originalism, the use of legislative history. justices against D fact, he disclaimed constructionist—in a strict was necessarily that characterization. of with his embrace to reconcile is difficult to statutes approach challenges of explained the once He originalism. constitutional the historical researching which include approach, the originalist consulting extrinsic and language constitutional context of records of state including the ratification documents, legislatures, position that yet “bought” Justice Scalia’s courts had not is “ legislative history E C THE (Mar. form of textualism that brings the whole philosophy into disrepute. I am not a strict form of textualism that brings the into disrepute. I am not a strict whole philosophy that, I suppose, than a be—though better constructionist, to ought and no one nontextualist.”). the rejection of legislative history source of statutory meaning can be as an authoritative reconciled with constitutional originalism. William Eskridge, Jr., N. Court Read 40357-aap_18-2 Sheet No. 75 Side A 06/11/2018 08:46:58 A 06/11/2018 75 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 75 Side B 06/11/2018 08:46:58 Id. .L. . 483, . 483, Id. UFF EV ROCESS Webster’s P ).Conceding L. R , 47 B , 47 The Lexicon Has The Lexicon ARY .&M There being no evidenceThere being M 328 RACTICE ANDRACTICE Webster’s Third P Webster’s Third International .66 (2006) (noting the 55, L.J. , 55 W , 55 ISS MCI Telecomm’ns Corp. v. Am. Tel. MCI Telecomm’ns Corp. v. Am. Oasis or Mirage: The Supreme Court’s Mirage: The Supreme Court’s Oasis or PPELLATE , 76 M , 76 A at 228. Instead, he cited the 1934 edition edition cited the 1934 he Instead, at 228. Id. —“to make minor changes” or “to make a basic minor changes” —“to make A Prolegomena to Federal Statutory Interpretation: A Prolegomena 149 U.S. 304, 306–07 (1893). “ 304, 306–07 (1893). 149 U.S. OURNAL OF OURNAL contradict[ed] [thecontradict[ed] in]more narrow definition virtually all J “ ) 6/4/2018 3:17 PM HE Webster’s Third note 89, at 16. at note 89, ELETE D But to a greater degree than any other Justice in any other degree than But to a greater OT N which led to a striking increase in the Court’s use increase in the Court’s use which led to a striking 326 supra ) and yet another dictionary published in 1993 in declaring that the Court that the Court in declaring dictionary published in 1993 another ) and yet J. Gordon Christy, Gordon J. O The Court has long consulted lay dictionaries to lay dictionaries has long consulted The Court , note 322 (noting that Justice Scalia changed “how advocates and judges advocates and judges note 322 (noting “how changed that Justice Scalia , Nix. v. Hedden, Hedden, v. , Nix. 327 1(D 325 James J. Brudney & Lawrence Baum, James J. Brudney & Lawrence at 225–26 at 225–26 (citing just four including dictionaries, to interpret the statutory term “modify.” supra ESEND Id. See, e.g. See, e.g. See R Compared to his penchant for textualism and his disdain for and his disdain for textualism to his penchant Compared on dictionaries as relying trend of The Scalia-initiated was not yet even contemplated.” even contemplated.” not yet was . 227, 261 (1999) (analyzing Court’s dictionary use during Justice Scalia’s first twelve use during Justice Scalia’s first twelve (analyzing Court’s dictionary 261 (1999) . 227, 328. 324. Morrison, 325. To illustrate, Justice Scalia once full pages and devoted three two lengthy 326. 327. EV NTRIKIN Webster’s Second Identifying the Sources of Interpretive Problems terms). irony that “we are treated to the truly absurd spectacle of august justices and judges arguing arguing judges justices and of august spectacle treated to the truly absurd are irony that “we dictionary dictionarywhich unreliable definition should be unreliable and over which deemed authoritative” (footnote omitted)). R Dictionary legislative history, considerably less has been written about has been written less history, considerably legislative be called dictionary for what might fondness Justice Scalia’s shopping. 1986. appointed in he was of dictionaries after do not is cause for concern. Dictionaries interpretive authority .html (noting Justice two years after Scalia’s death that Justices “now feel free to invoke feel obligated explain” its use); longer “to defend or even no legislative history,” and Schapiro, ultimately interpret they them”). talk about statutes, not how but footnotes to explaining the petitioners’ mistake in relying on word’s on the (Scalia, J.). He focused & nn.2, 3 (1994) 225–28 218, U.S. 512 & Tel. Co., alternative definitions in 258T Authority as Legal 3. Dictionaries defined not otherwise of terms the ordinary meaning determine in the statute. to dictionary referred Scalia routinely history, Justice definitions, E 495 (2013) (noting that the number of opinions consulting dictionaries more than doubled Thumma & Jeffrey L. Kirchmeier, 2011); Samuel A. and between 1986 Use of Dictionaries Court’s Supreme Fortress: The United States A Become or important change”—which at 227. ( is the meaning thehad “not the slightest doubt statute [moderate change] that intended.” that he might be “gilding the lily,” he noted that in 1934, when the controlling statute was statute the controlling was 1934, when “gilding the lily,” he noted that in that he might be . . . time relevant for determining a statutoryenacted, “the most term’s meaning, Third others.” that the words . . . have acquired any special meaning . . ., they must receive their ordinary receive their ordinary . . ., they must special meaning any acquired . have . . that the words a such upon . and . notice . judicial is bound to take meaning the court Of that meaning. .” . . . understanding and the memory aids to . as . question dictionaries are admitted . Thirst for Dictionaries in the Rehnquist and Roberts Eras and Roberts Thirst for Dictionaries in the Rehnquist 40357-aap_18-2 Sheet No. 75 Side B 06/11/2018 08:46:58 B 06/11/2018 75 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 76 Side A 06/11/2018 08:46:58 . ARQ RYAN at 938, &B in twelve id. , 94 M 213 (2008) ore than 50% of ore than 50% of CALIA S UDGES J at 938 n.111. at 938 Webster’s Second. Id. id. NTONIN Webster’s Second Webster’s A , which lexicographers consider consider which lexicographers , Statutory Interpretation from the Interpretation from the Statutory ERSUADING Scaling the Lexicon Fortress: The Fortress: The the Lexicon Scaling A Hasty, Hand-Scribbled Tax A Hasty, Hand-Scribbled Bill P see also Legislative drafters may in Legislative drafters may RT OF 332 A Webster’s Third International Third International Webster’s One of the disputes surrounding the disputes surrounding One of HE 329 :T are never or rarely used when drafting,” note 327, at 489 (noting that Justice Scalia favored ASE (Dec. 1, 2017), https://www.nytimes.com/2017/12/01/us/ https://www.nytimes.com/2017/12/01/us/ 2017), 1, (Dec. Contrary to Justice Scalia’s justifications justifications Scalia’s to Justice Contrary C at 507–08 (distinguishing prescriptive dictionaries from ) 6/4/2018 3:17 PM 259 supra 330 IMES American Heritage Dictionary American Heritage , OUR only “discriminatingly.”); T dictionaries ELETE Y And the time pressure of the legislative legislative of the pressure And the time D ISSENT OT 333 D N . 901, 938 (2013) (reporting that some survey respondents “specifically (reporting that some survey respondents (2013) 938 . 901, , N.Y. and the and the O , Jim Tankersley & Alan Rappeport, , Jim Tankersley & Alan Rappeport, AKING EV , for example, was whether a lay dictionary should a lay dictionary was whether , for example, see also id. M 1(D may mean that drafters have no opportunity to consult that drafters have no opportunity to mean may nly 15% said dictionaries were always or often used,” often used,” or always were said dictionaries nly 15% , at 907, 930, 934. Gluck and Bressman also reported that “[m] Gluck and 934. at 907, 930, Abbe R. Gluck & Lisa Schultz Bressman, Lisa Schultz & R. Gluck Abbe at 96. for Scalia demonstrated a clear preference Justice .L.R 334 Webster’s Third Webster’s (explaining than since 2000, Justice Scalia had cited Justice Scalia than since 2000, (explaining 331 ESEND Brudney & Baum Jeffrey L. Kirchmeier & Samuel A. Thumma, Kirchmeier & Samuel A. Thumma, Jeffrey L. Id. Id. See See, e.g. R . 77, 95 & n.84 (2010) (noting scholarly criticism of dictionaries for inaccuracy). (noting scholarly criticism of dictionaries for inaccuracy). (2010) n.84 95 & . 77, More important, consulting dictionaries to interpret dictionaries consulting More important, TAN ARNER EV 331. 329. 330. 333. 332. 334. ISRESPECTFUL NTRIKIN , 65 S , 65 at 96–97 cases, but (recommending several dictionaries). (recommending several L. R fact lack access to authoritative dictionaries, or simply fail to fail to simply or dictionaries, fact lack access to authoritative consult them. process A. G the 1961 publication of publication the 1961 Dictionary how instead prescribe actually used or how words are describe be used. they should of a meaning to discover the ordinary for consulting dictionaries by editors were compiled lay dictionaries traditional word, many than on correct usage preserving on who focused more understood then used and ordinary Americans describing how words. ordinary that statutes are drafted with assumes meaning statutory be If this were so, Congress could in mind. dictionary definitions it intends to for any term a statutory definition expected to draft not But research does or unusual meaning. carry a specific hypothesis. support that implicit D in as used term of a best—meaning even the the only—or reflect English. American ordinary E referenced Justice Scalia—acknowledging that the Court frequently uses dictionariesthe Court frequently that but referenced Justice Scalia—acknowledging noting that they remain mostly irrelevant to the drafting process,” including one drafter one uses a freaking laughing that ‘Scalia is a bright guy, but no while who “said dictionary’”). Webster’s Second Webster’s Second prescriptive); descriptive). United States Supreme Court’s Use of Dictionaries in the Twenty-First Century of Dictionaries Court’s Use United States Supreme our respondents said that Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part Part Canons: and the Delegation, Drafting, Study of Congressional Inside—An Empirical I and that “[o] Sets Off an OutcrySets Off an 40357-aap_18-2 Sheet No. 76 Side A 06/11/2018 08:46:58 A 06/11/2018 76 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 76 Side B 06/11/2018 08:46:58 ,5 see , 10 J. Chevron Chevron ROCESS P Chevron Id. As a Justice and led the , https://www.acus , https://www.acus 337 336 . . . permit[s] executive . permit[s] . . RACTICE ANDRACTICE P . Chevron In 2001, for example, In 2001, for example, Antonin Scalia deference to agency agency deference to 338 Gutierrez-Brizuela v. Lynch, 834 F.3d F.3d 834 Lynch, v. Gutierrez-Brizuela He previously chaired the He previously PPELLATE _ May%25202010%2520Congressional % 335 A but cf. Chevron https://www.acus.gov/sites/default/files/documents note 160, at 1 (statement of Senator Thurmond, note Back to Basics: Making Law Without Making Rules Making to Basics: Making Law Without Back supra 118, 119–22 (1990) (explaining and defending (1990) 118, 119–22 OURNAL OF OURNAL , J ) 6/4/2018 3:17 PM Admin. Conf. of the U.S., U.S., the of Admin. Conf. Judicial Deference to Administrative Interpretations of Administrative Interpretations Judicial Deference to Law, available at available HE UDGES ELETE D Judicial Deference to Administrative Interpretations of Law Judicial Deference to Administrative .L.J I dissent even more vigorously from the reasoning that produces the OT see also N O , Antonin Scalia, DMIN A 1(D 25 (July-Aug. 1981). L.J. 511, 511–14 (1989) (same); (1989) 511, 511–14 L.J. N at 261 (“ ’ 339 ESEND SS Confirmation Hearings See, e.g. R UKE A By the time he became a judge, Justice Scalia was already a judge, Justice he became By the time L Antonin Scalia, ’ 337. 338. (1984); 837 U.S. Inc., 467 Council, Def. Chevron, U.S.A., v. Nat. Res. Inc. 335. 336. the Law, H. Comm. on Comm. & Admin. Hearing Before the Subcomm. on 339. (2001) (Scalia, J., dissenting); 239–61 218, U.S. 533 United States v. Mead Corp., AT EGULATION NTRIKIN .gov/contacts/antonin-scalia. Later he was a senior fellow of the Conference. Conference. of the fellow a senior was he .gov/contacts/antonin-scalia. Later R /Breyer%2520and%2520Scalia%2520Testimony 2520Hearing_0.pdf; 2520Hearing_0.pdf; noting that Judge serving as “assistant attorney general for the Scalia’s experience included Counsel”). Legal Office of also an expert on administrative law. administrative an expert on Justice’s Office of Legal of Counsel. Department supported he strongly that informal dissent when the Court held he wrote a visceral to necessarily entitled were not agency interpretations of a variety to according should be assessed deference, but factors. politics/hand-scribbled-tax-bill-outcry.html that a major tax- Senator’s concern (quoting overhaul bill received just before a vote “literally ha[d] hand scribbled policy changes on it”). Scalia, deference); Antonin 1989 D 260T terms statutory undefined that to ensure dictionaries of a library attach after a Court might that the “ordinary meaning” convey a host of lay dictionaries. consulting Deference 4. Administrative States United of the Conference Administrative statutes. ambiguous interpretations of E N Judiciary, 111th Cong., 2d Sess. 22, 24 (May 20, 2010) (prepared Statement of the Statement 2010) (prepared 20, 24 (May 22, Sess. 2d Cong., Judiciary, 111th Scalia), Antonin Honorable 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (“ concurring) J., Cir. 2016) (Gorsuch, (10th 1142, 1149 bureaucracies to swallow huge amounts of core judicial and legislative power and power legislative judicial and amounts of core swallow huge bureaucracies to concentrate federal power in a way . . . difficult to square with the Constitution of the framers’ design.”). see also id. the most significant opinions one of today’s decision that makes and Court’s judgment, ever rendered by the Court dealing action. Its with the judicial review of administrative almost uniformly bad.”) and be enormous, will consequences 40357-aap_18-2 Sheet No. 76 Side B 06/11/2018 08:46:58 B 06/11/2018 76 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 77 Side A 06/11/2018 08:46:58 ). .L. EV Auer and .R Decker v. Decker 344 . ’s validity). Auer v. Auer v. EX typical Nino typical Court seemed Court seemed Auer . 612, 696 (1996) (1996) 696 . 612, noting that Justice see also Auer EV . 297, 306–07 (2017) (2017) 297, 306–07 . about EV .L.R by scholars, Cass R. Sunstein & Adrian But then, turning to to But then, turning .L.R OLUM 343 HI 342 341 because “[a]ffording deference to because “[a]ffording C note 344, at 299 ( but cf. Secretary’s interpretation Secretary’s , 96 C , 96 Constitutional Structure and Judicial Auer warranted reconsideration, if warranted reconsideration, supra Beginning in 2011, he dropped Beginning in 2011, relied); 345 Auer, 84 U. Auer, 84 Auer What Do the Studies of Judicial Review of Agency Agency of Review of Judicial the Studies Do What Auer The majority refused to go along. And refused to go along. And The majority and applying the Act as written.”); and applying the Act as Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 67– U.S. 50, Co., 564 Bell Tel. v. Mich. Am., Inc. Talk . 77, 85 (2011) (concluding that the 85 (2011) . 77, ); 346 EV Auer John F. Manning, John F. Manning, ) 6/4/2018 3:17 PM 261 Auer , on which .L.R ELETE author and (late in his career) its leading judicial critic”) its leading judicial (late in his career) and author D ’s ISSENT OT DMIN see also D N note opinions criticizing 346 (citing Justice Scalia’s separate Richard J. Pierce, Jr., Richard O Auer , ). that the Labor Department had discretion to interpret discretion to interpret had Labor Department that the at 461. at 461. has been criticized by courts, has been criticized 63 A , he reasoned that the that the he reasoned , 1(D Elgin Nursing & Rehab. Ctr. v. U.S. Dep’t of Health & Human Servs., 718 718 Servs., Human & Health Dep’t of Ctr. v. U.S. Rehab. Nursing & Elgin Perez v. Mortg. Bankers Ass’n, ___ U.S. ___, 135 S. Ct. 1199, 1213 (2015) Perez v. Ass’n, 1213 Mortg. Bankers ___ U.S. 135 Ct. 1199, (2015) ___, S. , , finding it not “unreasonable.” , finding it not at 458. at 458. Seminole Rock 340 Auer The Unbearable Rightness of Unbearable Rightness The ESEND E.g. See, e.g. See infra Id. See id. See R Auer Just as Justice Scalia’s position on legislative history on legislative position Scalia’s as Justice Just . 303, 305 (2017); Sunstein . 303, 305 & Vermeule, OL 343. 344. 345. 340. 452 (1997). 519 U.S. 341. 342. 346. ISRESPECTFUL NTRIKIN Justice Thomas reportedly recalled hearing Justice Scalia once remark, “in Justice Scalia once remark, Justice Thomas reportedly recalled hearing a . ‘Just . . was an important precedent had become of our opinions that fashion, that one horrible opinion, one of the worst ever.’ I thought briefly about what he had said, and v. Robbins, Cf. Auer whispered ‘Nino, you wrote it.’” L. Nielson, Aaron 21 T F.3d 488, 494 (5th Cir. 2013) (refusing to extend Cir. 2013) 494 (5th F.3d 488, agency interpretations of ever more ambiguous regulations would allow the agency to to allow the agency would regulations agency interpretations of ever more ambiguous new rules”). while crafting do so to but executioner jury, and as judge, function not only Actions Mean? to be messaging lower courts to give “extraordinary deference” to “agency interpretations “agency deference” to to give “extraordinary to be messaging lower courts of agency rules”); Agency Interpretations of Agency Rules Deference to (defending &P 68 (2011) (Scalia,(expressing “increasing[] doubt[]” J., concurring) Nw. Envt’l Def. Ctr., 568 U.S. 597, 617 (2013) (Scalia, J., dissenting) (opining that “it is J., dissenting) (opining that (Scalia, (2013) 617 597, U.S. Ctr., 568 Envt’l Def. Nw. time” for reconsideration of Robbins of its own ambiguous interpretation and application the agency’s regulation plainlycontrolled unless or inconsistent with the erroneous consulting two lay dictionaries, language. After regulation’s it was neither. that Justice Scalia decided himself. even by Justice Scalia D In jurisprudence. so did his administrative-deference evolved, Court in for a unanimous had written 1997, he to the agency’s he deferred First, regulations. its own ambiguous statute under controlling ambiguous of an interpretation Chevron that direct hints increasingly E not outright overruling. (critiquing Vermeule, Scalia was “both Scalia was (“I would . . . restore the balance originally struck by the (Scalia, J., concurring) [Administrative with respect to Procedure Act] an agency’s interpretation of its own abandoning regulations . . . by 40357-aap_18-2 Sheet No. 77 Side A 06/11/2018 08:46:58 A 06/11/2018 77 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 77 Side B 06/11/2018 08:46:58 .R. .R. T Views Views Utah , J. 31, 31 31 J. 31, S. C ROCESS P AR . 1185, 1197 1197 . 1185, TAH B EV , U B.J. 22, 22 (July– 22, 22 B.J. IVILITY TAH L. R C Then he turned turned he Then TAH , 16 U , 16 NTEGRITY See, e.g. See, I 349 RACTICE ANDRACTICE which provide that P , 30 U , 30 351 , 67 N.Y.U. 67 , , in 2003. in MPACT ON MPACT ON 347 I . , https://www.utcourts.gov/resources/ , https://www.utcourts.gov/resources/ S ’ PPELLATE note 345, at 306 (footnote omitted).note 345, at Auer A NSTITUTIONAL I supra supra CALIA S After quoting Justice Scalia’s dissent After quoting Justice Scalia’s dissent ] doctrine is on its last gasp.”). ] AND A. Background , 350 OURNAL OF OURNAL Civility in a Time of Incivility Civility in a Time J .” Nielson, Speaking in a Judicial Voice Speaking Auer USTICE ) 6/4/2018 3:17 PM J HE THICS Auer ELETE E D OT , the it against Voros measured Judge N O SSESSING Standards of Professionalism and Civility of Professionalism Standards 1(D 348 UDICIAL at 23. at 23. J ESEND Standards of Professionalism and Civility Standards United Student Aid Funds, Inc. v. Bible, ___ U.S. ___, 136 S. Ct. 1607, 1608 ___ United Student Aid Funds, Inc. v. Bible, Id. R IV. A right. [E]ven in the most emotion-laden, politically sensitive case, politically most emotion-laden, [E]ven the in writing does not require a judgeeffective opinion to for failing to see the light or to upbraid colleagues get it Shortly after Justice Scalia’s death, Judge Voros of the Scalia’s death, Judge Voros Shortly after Justice Obergefell 348. Ginsburg, Ruth Bader 347. 350. 349. Jr., J. Frederic Voros, 351. Utah is a leader in promoting civility in the Supreme legal profession. The Utah NTRIKIN from the Bench: Supreme Court Adopts Professionalism Standard Supreme from the Bench: rules/ucja/view.html?title=Rule%2014-301.%20Standards%20of%20Professionalism%20 rules/ucja/view.html?title=Rule%2014-301.%20Standards%20of%20Professionalism%20 Michael J. Wilkins, and%20Civility.&rule=ch14/03%20Civility/USB14-301.html; (2016) (Thomas, J., dissenting from denial of certiorari) (“Any reader of this(2016) (Thomas, J., dissenting from denial Court’s that the [ opinions should think 14-301, (Sept. 2003). In 2015, the Utah Supreme Court linked the Civility Standards to the Utah Utah Court linked the Civility Standards to the Supreme 2015, the Utah In (Sept. 2003). serious or repeated violations of the providing that by Professional Conduct Code of in Civility Standards of Professionalism and to the courts, admitting that some judges act “in a way we would judges act “in a way we would that some admitting to the courts, that “it started at the top.” have to call uncivil,” and confessing brilliant jurist,” Judge Voros Recognizing Justice Scalia as “a criticized as an was often late Justice out that the also pointed of incivility.” “example mind:Justice Scalia posthumously for changing his has applauded At least one scholar he and then switched, he was wrong, right was . . . that what he thought “Once he realized of tireless opponent was a Utah Court of Appeals began a presentation on civility in the civility in the began a presentation on Utah Court of Appeals that of political discourse decrying the tone by legal profession campaign. characterized the 2016 presidential 262T a in certiorari denied Court the died, Scalia after Justice soon overrule the Court to case asking E Aug. 2017). 2017). Aug. (1992) (footnote omitted). (1992) (footnote Court adopted 40357-aap_18-2 Sheet No. 77 Side B 06/11/2018 08:46:58 B 06/11/2018 77 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 78 Side A 06/11/2018 08:46:58 AME AME In re D , Jessie Judges note 349, at note 349, OTRE 354 356 ROFESSIONALISM , 14 N , 14 supra P see also, e.g. Randall T. Shepard, Randall T. Shepard, at 23–24 (citing 23–24 (citing at Voros, Voros, The Special The Professional Id. see also See TANDARDS OF . 381, (2002) & nn.43, 44 389 S The Judiciary and the Administration The Judiciary EV 352 TAH .L.R ND setting an example of dignified, of dignified, setting an example The buck stops at the top. The buck stops R. 8.4, cmt. 3a). 3a). R. 8.4, cmt. , Randall T. Shepard, 357 355 , 35 I (Apr. 27, 2016), http://host.madison.com/ct/news/local/ 2016), (Apr. 27, And then he offered some advice to his some And then he offered ) 6/4/2018 3:17 PM 263 IMES ONDUCT . 481, 512 (1911) (“The bench comes from the bar, and the from the bar, and comes bench (1911) (“The 512 481, . 353 T See, e.g. C 223, 223 (2000) (“While judges and lawyers are cut from the and lawyers judges (2000) (“While 223, 223 note 349, and accompanying text; accompanying note 349, and EV Y L ’ ELETE ’ D note 349, at 23 (quotingnote U OL ISSENT note 349, at 23. Judge Voros stopped just short of referring to Justice Voros stopped Judge 349, at 23. note OT ROF APITAL supra supra .L.R .P D N M O , C R. P UB supra supra at 25. 25. at 1(D R. 3). Everett V. Abbott & Charles A. Boston, A. & Charles Abbott Everett V. Id. Voros, &P TAH 45 A 45 Unfortunately, Justice Scalia by was not alone. Judge Voros continued ESEND Wisconsin Supreme Court Justice David Prosser to Retire, Replacement Will Prosser to Retire, Replacement Justice David Court Wisconsin Supreme See See Id. R [l]awyers basis, factual an adequate without not, shall to other counsel attribute motives, the court improper or Lawyers conduct. or purpose, should avoid hostile, and oral words in written or humiliating demeaning, communicationswritten Neither with adversaries. the should disparage presentations oral nor submissions ethics, or personal behavior morals, integrity, intelligence, of an adversary areunless such matters directly relevant law. substantive under controlling Judge Voros is right. IVILITY THICS THICS C 354. Voros, 355. the first judge Judge Voros is not express concerns about the rhetoric of to 356. 353. 352. Voros, 357. ISRESPECTFUL NTRIKIN AND standards of the bench are ultimately the standards of the bar.”). the bar.”). standards of the bench are ultimately of the standards Challenges of Appellate Judging govt-and-politics/election-matters/wisconsin-supreme-court-justice-david-prosser-to-retire- replacement-will/article_fbd6c7ea-a7e7-535f-8954-2d17c94836af.html. by Rule 3—hostile, condemned no mistake, the conduct Scalia as a bully: “[M]ake uncivil, but bullying attacks—is not just humiliating words and personal and demeaning, the is to repudiate justice by bullying in our system of to seek a result And and abusive. rule of law.” Justices. Supreme Court 22 (citing U Judicial Professionalism and the Relations between Judges and Lawyers J.L. E Standards “may support a finding that the lawyer has violated [the prohibiting Utah rule] of justice.” conduct that is prejudicial to the administration D Voros, “I think asked Judge humiliating?” “Hostile, demeaning, he asked. of another?” the intelligence so.” And “Disparaging so.” “Again, I think in a model you look to Justice Scalia as if listeners: “[E]ven his tone of incivility.” do not imitate other ways, please E as high as those be held to standards at least and Justices should applied to other lawyers, (“Venomous language obscures the law and erodes civility in our(“Venomous language obscures the profession. It is a (citing examples)). Court.” Supreme States United even the problem that affects of the Law, same cloth, judges have many obligations that practitioners do not.”). obligations that practitioners do not.”). judges have many same cloth, discussing intemperate outbursts appellateby other judges. Charges of Judicial Misconduct, 769 F.3d 762, 768 (D.C. Cir. 2014)); Cir. 2014)); (D.C. 768 762, F.3d Misconduct, 769 Charges of Judicial Opoien, Opoien, Serve Until 2020 40357-aap_18-2 Sheet No. 78 Side A 06/11/2018 08:46:58 A 06/11/2018 78 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 78 Side B 06/11/2018 08:46:58 359 . An ROCESS P (June 9, 2017), (June 9, 2017), ABA Model COM . EWS RACTICE ANDRACTICE Cheryl B. Preston & Hilary Cheryl B. Preston P , USN The professionalism The professionalism 701, 707–09, 739–44 (2015) (2015) 739–44 701, 707–09, see see 358 EFORM PPELLATE note 351; A .J.L.R supra supra ICH M . ABA Canons of Professional Ethics The Ethical Honor System Honor The Ethical OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE . R. 14-301, , 48 U. T ELETE D S. C OT N O TAH 1(D ,U Joseph P. Williams, Incentivizing Lawyers to Play Nice: A National Survey of Civility Standards and Lawyers to Play Nice: A Incentivizing ESEND E.g. See R Standards of conduct for lawyers alike all trace and judges Dismayed by the lack of civility that Judge Voros that Judge lack of civility by the Dismayed 358. 359. NTRIKIN Whether that significant gap warrants reconsideration is warrants reconsideration Whether that significant gap discussed below. their history to the 1908 264T and incivility Judicial conduct. professional and civil, the of by members when displayed especially intemperance, judges and the for other set the wrong example Court, Supreme legal profession. adopted standards courts have state supreme many highlighted, the Model Rules civility to supplement and of professionalism Conduct for lawyers. of Professional has also addressed judicial As this Part movement civility. and evolution of judicial the development explains, however, and timeline. have followed a different path codes of conduct have been codes civility and professionalism Indeed, while most codes in bench and bar, judicial conduct initiatives of the Congressional often adopted in response to particular were group is but influential And one small concerns and initiatives. to all of conduct that now apply even the standards from exempt Court. Justices of the Supreme other federal judges: the nine E lawyer civility is to encourage analysis of the century-long effort Instead, this section touches on beyond the scope of this article. standards pertaining to judges, codes and the professionalism by the ABA and for decades which were initially developed federal judges. But since the were cited as ethical guidelines for code of conduct for federal late 1970s, the federal judiciary’s the ways from judges has departed in significant Code of Judicial Conduct (surveying and critiquing state professionalism creeds adopted since late 1980s). since late creeds adopted state professionalism critiquing (surveying and https://www.usnews.com/news/the-report/articles/2017-06-09/supreme-court-justices-play- by-their-own-ethics-rules (discussing Justices’ travel). Lawrence, Lawrence, Options for Enforcement 40357-aap_18-2 Sheet No. 78 Side B 06/11/2018 08:46:58 B 06/11/2018 78 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 79 Side A 06/11/2018 08:46:58 362 364 for Two 360 Canons of at 273. He resigned That group would later would That group Id. note 357, at 506 (calling for at 506 note 357, supra . (2012). 39 & n.26 33, Id. EV R The Institutional Politics of Federal Judicial Politics of Federal The Institutional Canons of Professional Ethics Canons of Professional § 2, 42 Stat. 837, 838 (1922). 838 42 Stat. 837, 2, § OLICY , Abbott & Boston, & Boston, Abbott , note 56, at 272–73. Judge Landis’s appointment as Landis’s appointment Judge 56, at 272–73. note note 56, at 272. Beginning with the Judiciary Act of Act of Beginning with the Judiciary at 272. 56, note 363 L. & P ) 6/4/2018 3:17 PM 265 supra note 59. supra B. Judicial Conduct Codes Conduct B. Judicial ALE ELETE D see also, e.g. also, see supra supra , Dana A. Remus, ISSENT , OT in 1924. , 31 Y , 31 D N Canons of Judicial Ethics Canons of Judicial O The effort gathered force in 1922 when federal judge force in 1922 when federal The effort gathered 1(D 361 at 272–73; at 272–73; ESEND see also, e.g. Id. 1924 Canons R Judicial codes of conduct have a complex history. have a complex codes of conduct Judicial of then-Chief Justice Taft, at the urging In the meantime, The bar began calling for canons of judicial ethics soon of calling for canons The bar began 360. Lievense & Cohn, 361. 362. Lievense & Cohn, 364. 306, ch. 67-298, Pub. L. No. 363. ISRESPECTFUL NTRIKIN 1789, Lievense and Cohn provide a concise overview of early congressional efforts to efforts to congressional of early overview a concise provide Cohn and 1789, Lievense Constitution’s provision the for appointment beyond judges, of federal regulate the conduct for life conditioned on the judge’s good behavior. Much of this section’s discussion relies Cohn’s work. on and Lievense the rule-making arm of the 331and conduct-regulating § federal court system. 28 U.S.C. (2012); Regulation Conduct After advisory ethics opinions issued by the Conference began began by the Conference After advisory ethics opinions issued lawyers. accepted a generous salary to serve Kennesaw Mountain Landis the bench. of baseball while still on as the first commissioner the ABA to adopt The ensuing controversy led Ethics Judicial Conference of Senior Circuit Judges, Congress established the courts. the federal of charged with overseeing the business D E courts state courts overseeing supreme systems—state parallel oversight— to Congressional courts subject and federal are appointed federal judges most While the picture. complicate and others are selected are elected state judges for life, some on the section focuses procedures. This under merit-based entire judicial where Justice Scalia spent his federal courts, career. 1. The ABA’s issued the after the ABA become known as the Judicial Conference of the United States, which continues to serve as baseball commissioner followed the 1919 World Series scandal. judicial reform, including a code of judicial ethics). of code a judicial reform, including the resulting controversy cleared away The from the bench after the ABA censured him. judges. ethical guidelines for last opposition to 40357-aap_18-2 Sheet No. 79 Side A 06/11/2018 08:46:58 A 06/11/2018 79 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 79 Side B 06/11/2018 08:46:58 E. E. 368 supra supra , 1977 , 1977 , ROCESS Model Lievense P But as see also ]; 366 Code of see also note 364, at 41 & notes 59–61 and and notes 59–61 1924 Canons supra note 364, at 44 & n.51. & n.51. 364, at 44 note After proposed After proposed (1972), http://fsmsupreme and the RACTICE ANDRACTICE note 364, at 46–47. 46–47. at 364, note 367 P See supra supra ABA Model Code supra ONDUCT C 370 . PPELLATE A UDICIAL J In the meantime, the Judicial the Judicial In the meantime, note 364, at 40. 40. at 364, note (Feb. 8, 2017), http://time.com/4659403/neil- (Feb. 8, 2017), 371 . they became guiding principles for principles guiding became they supra ODE OF 365 COM C 1924 Canons . note 56, at 275. 56, note note 56, at 275; Remus, at 275; 56, note a note 56, at 274, 275; Remus, Remus, 275; at 274, note 56, a OURNAL OF OURNAL (describing downfall of Justice Fortas); J IME ) 6/4/2018 3:17 PM A Filibuster on a Supreme Nomination Court Is So Rare A leading to appointment of an ABA leading to appointment supr ODEL HE supra supra supra supra , T 369 ELETE D note 364,note 46–47. at OT N O note 56, at 274–75 (discussing Justice274–75 Fortas, related inquiries, and at 56, note supra supra The Code of Judicial Conduct—The First Five Years in the Courts Code of Judicial Conduct—The The 1924 Canons,1924 1(D Elizabeth King, at 276; ABA M at 276; supra ABA Model Code of Judicial Conduct ABA Model Code ESEND Id. R In 1972, the ABA issued its substantially revamped In 1972, the ABA issued its substantially The failed 1968 nomination of Justice Fortas to serve as of nomination The failed 1968 see also ; 366. In particular, Canon appellate judges against issuing 19 cautioned separate 367.former clientassociated with a a foundation Justice Fortas had accepted fees from 369. Remus, 370. Cohn, Lievense & 371. 365. Lievense & Cohn, 368. Cohn, Lievense & NTRIKIN opinions except in cases of special public significance. opinions except “courteous to counsel were 34 envisioned judges who Canons 10 and accompanying text. and refrained from seeking “public praise,” . . . in the court,” who also to all others . . . and who did not “administer the office. popularity.” for the purpose of . . nomination, Justice Fortas withdraw the to After a filibuster forced President Johnson of impeachment. after repeated threats but soon resigned Court for a time, continued on the Id. It’s Only Worked Once note 59, at Canon 10, Canon 34. 34. Canon 10, Canon at note 59, Remus, then under investigation for securities violations. gorsuch-filibuster-abe-fortas/ nn.38, 39. Before 1980, neither the Judicial Conference nor its predecessor had any binding 1980, neither the Judicial Before 39. nn.38, Remus, judges. authority over federal These events rekindled ABA efforts to strengthen regulation of ABA efforts to strengthen These events rekindled judicial conduct, the to revisit committee Code of Judicial Conduct 266T the citing Justice Burger Chief in Congress, introduced legislation was several Judicial Conference, which adopted called on the response. generated a favorable congressional resolutions that E decades. the next several judiciary over the federal the after 1973, when practice changed shown, that history has federal of conduct for its own code first adopted Conference judges. 2. The Conduct for U.S. Judges Conduct for U.S. of a code further efforts to establish Chief Justice triggered federal judges. for conduct specifically & Cohn, & Cohn, proposed judicial-reform legislation). court.org/pdf/1972codeofjudicialconduct.pdf [hereinafter court.org/pdf/1972codeofjudicialconduct.pdf Wayne Thode, Wayne Thode, 40357-aap_18-2 Sheet No. 79 Side B 06/11/2018 08:46:58 B 06/11/2018 79 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 80 Side A 06/11/2018 08:46:58 ] , 57 , 57 , at 1 Warren The Fox The Fox IMES Code of should should note 364, at note 364, , http://www note 56, at 276; , it included , it included see also ,N.Y.T supra OURTS , 408 U.S. 1 (1972), , 408 U.S. 1 (1972), C supra supra Code for U.S. Judges Code for U.S. Judges for U.S. Code 373 . . . . To the extent possible TATES Proceedings of the Judicial Proceedings Code of Conduct for Code of S Caprice L. Roberts, see , to it did not apply though even was adopted today by the Judicial NITED Laird v. Tatum ABA Model Code Model ABA Code of Judicial Conduct for United for Judicial Conduct of Code see also , U ABA Model Code Model ABA with modifications); Remus, note 372, at 273 (omitting 372, note Supreme Court Justices persuaded Congress that the federal persuaded Congress Code of Judicial Conduct ABA Model Code ABA Model supra , note 371, at 395; 371, at 395; note acknowledged federal statutes governing judicial conduct, statutes governing judicial conduct, federal acknowledged ) 6/4/2018 3:17 PM 267 For example, it expressly applied to all applied it expressly For example, To address that concern, it amended and concern, it amended To address that supra 372 ELETE ABA Model Code ABA Model ). D note 371, at 403 n.36. Justice Rehnquist’s decision was criticized as Rehnquist’s Justice 403 n.36. at note 371, 374 ISSENT OT . that the (2004) (reasoning 107, 138 D N O EV supra supra . Closely following the . Closely 1(D note 371, at 403 n.36. n.36. at 403 371, note , 69 F.R.D. 273, 273 (1975) [footnoted hereinafter as 273 273, F.R.D. , 69 Tough Code of Ethics Adopted for Judges in Federal Courts for Judges Code of Ethics Adopted Tough L. R ESEND Code for U.S. Judges Code for See Code for U.S. Judges See Code for U.S. R supra supra except the nine members of the Supreme Court nine members except the For the most part, the Conference’s adoption of the part, the Conference’s For the most Code Code for U.S. Judges 373. 374. prompted in disqualification may have been Congressional concerns about judicial 372. States, United of the Judicial Conference ISRESPECTFUL UTGERS NTRIKIN 48. The from its reach); Thode, Guarding the Henhouse? Recusal and the Procedural Void in the Court of Last Resort and the Procedural Recusal Guarding the Henhouse? R see alsoUnited States Judges Conduct for of Code .uscourts.gov/sites/default/files/vol02a-ch02_0.pdf (March 20, 2014) (providing current text (providing 20, 2014) (March .uscourts.gov/sites/default/files/vol02a-ch02_0.pdf of removed some of the ABA’s commentary about the removed some of the ABA’s commentary extrajudicial income, and amended judges’ political activities. Lievense & Cohn, ABA canon regulating Conference of the United States, April 5–6, 1973, 93d Cong., 1st Sess., H. Doc. No. 93- H. 1st Sess., 93d Cong., April 5–6, 1973, United States, of the Conference 103, at 9–11 (adopting new code of ethics covering all Federal 1973) (“A tough and comprehensive (Apr. 7, judges (emphasis added)). States.” United of the Conference part by then-Justice Rehnquist’s refusal to recuse in a few variations. [ABA] (“The Code is based upon the has been retained.”); Code the [ABA] the language of Justices” (citations omitted)); the . does not govern . . “[t]echnically despite having advocated for the government’s position while an Assistant Attorney General. Thode, apply to federal judges. A few months later, the Conference later, A few months federal judges. apply to the of what is now the first version adopted U.S. Judges warranting circumstances statutory expanded the Code makes clear that its Preface to the are standards 396 (“[T]the 395, Utah L. Rev. enforceable.”). intended to be D the whether considered Conference Justices. Court Supreme except federal judges E Justices. By amending the language of Canon 3C into Title 28, Congress settled the issue. Thode, Conduct for U.S. Judges Conduct for U.S. remained so, Congress police its own. Even judiciary could for judicial the lack of standards concerned about disqualification. inconsistent with of the Canon 3C Weaver, Jr., States Judges 40357-aap_18-2 Sheet No. 80 Side A 06/11/2018 08:46:58 A 06/11/2018 80 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 80 Side B 06/11/2018 08:46:58 .L. A P ROCESS P , Shell Oil Co. , 131 U. , 131 Pub. L. No. 93- L. Pub. e.g. and required the and required the Compare Compare at 402; 377 RACTICE ANDRACTICE Id. P Congress reserved a Congress reserved 380 28 U.S.C. § 455(a), (e); Thode, (e); Thode, U.S.C. § 455(a), 28 Significantly, the 1980 Significantly, the Procedural Rulemaking Under the Rulemaking Under Procedural note 371, at371, note (1972). 3C Canon see 379 at 37–38. at 37–38. supra PPELLATE and “a loose oversight role” role” oversight and “a loose , A 381 note 364, note at 48–52. 28 U.S.C. §§ 351–64 (2012). (2012). 351–64 §§ U.S.C. 28 see also see id. see supra Stephen B. Burbank, Stephen B. Burbank, OURNAL OF OURNAL J see ) 6/4/2018 3:17 PM Remus, Remus, The Conference soon proposed legislation The Conference HE which were expressly extended to Supreme Supreme to extended expressly were which with ABA Model Code with See See ELETE 378 D note 364, at 52; 364, at note note 364,note 52; at 375 But the Act’s vague definition of “misconduct” of “misconduct” vague definition But the Act’s note 371, at 402 (citing 28 U.S.C. § 455). § 455). note 371, at 402 (citing 28 U.S.C. OT 376 N at § 308(9), 92 Stat. at 1861 (codified as amended at 5 U.S.C. app. 4 4 app. U.S.C. at 5 as amended (codified Stat. at 1861 92 308(9), at § 382 O Id. supra supra supra supra supra note 364, at 52; 1(D 28 U.S.C. § 357 (2012). 357 (2012). § U.S.C. 28 ESEND See supra R In the aftermath of Watergate and President Nixon’s of Watergate In the aftermath note 371, at 402. Professor Thode researched the reported cases interpreting and the reported cases interpreting at 402. Professor Thode researched note 371, . (1982). 284–85 283, 378. 1858 (1978) Stat. 1824, 92 § 303, L. No. 95-521, Act, Pub. Ethics in Government 379. Act]; Conduct Judicial (1980) [hereinafter 1980 Stat. 2035 94 No. 96-458, L. Pub. 376. (1974); Stat. 1609 88 93-512, No. Pub. L. 382. Remus, 380. Remus, 381. 375. Thode, 377. 4 app. (codified as amended at 5 U.S.C. (1978) 92 Stat. 1824 Pub. L. No. 95-521, EV NTRIKIN [hereinafter 1978 Ethics Act]. Ethics Act]. [hereinafter 1978 Remus, Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 Conduct and and Judicial Judicial Councils Reform for Congress. resignation, Congress enacted the Ethics in Government Act of enacted the Ethics in Government resignation, Congress to all “judicial officers” 1978, which applied to appoint a Judicial Ethics Committee to Judicial Conference Act. enforce the Judicial and Reform the Judicial Councils that would become Act of 1980. Conduct and Disability authority over misconduct Act shifted primary Judicial Conduct judges of the federal courts and sanctions to the chief complaints judicial councils. of appeals and circuit for the Conference role limited to determine councils judicial Conference and the left it to the 268T disqualification, Conduct and Reform and Judicial Councils 3. The Judicial of 1980 Act Disability E Court Justices. R § 110(9)). The Judicial Conference may have withdrawn its early § 110(9)). The Judicial Conference may have opposition to the 1978 Act for strategic reasons. v. United States, 672 F.3d 1283, 1294 (Fed. Cir. 2012) (vacating Federal Court of Claims Court of Claims (vacating Federal 2012) Cir. (Fed. 1294 672 F.3d 1283, United States, v. to different judge). for reassignment remanding and failure to recuse judge’s judgment for “judicial officer” to include the members of theAct defined The §§ 101–11 (2012)). Supreme Court. supra that the primary legal issue was not § 455 and concluded U.S.C. and 28 applying Canon 3C the to discipline was subject for failing to recuse,whether judge but whether a federal judge’s participation in deciding the case was reversible error. 512, 88 Stat. 1609 (1974) (1974) 1609 Stat. 512, 88 40357-aap_18-2 Sheet No. 80 Side B 06/11/2018 08:46:58 B 06/11/2018 80 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 81 Side A 06/11/2018 08:46:58 388 codified see also also see . 1, 3 (1993) . 1, 3 (1993) Code for U.S. EV note 364, at 57 & at 57 note 364, note 364, at 56 & notes 402–03 andnotes 402–03 ONFERENCE OF THE .L.R C supra supra A supra supra The National P authorizing it to it authorizing note 364, at 56; 390 See infra 384 Foreword: The Law of Federal Federal of The Law Foreword: UDICIAL note 384, at 4 (citing “concerns note 384, at 4 (citing “concerns Remus, J , 142 U. , 142 supra supra 385 supra 387 see also see In 1989, Congress amended amended In 1989, Congress 386 ROCEEDINGS OF THE By enacting these provisions, Congress Congress these provisions, enacting By P Burbank & Plager, 383 ) 6/4/2018 3:17 PM 269 see ELETE D note 364, at 52, 54. 52, 54. 364, at note ISSENT OT D N O 14, 15 (Mar. 13, 1990)). 1990)). 13, 14,15 (Mar. supra supra EPORT OF THEEPORT 1(D Stephen B. Burbank & Sheldon Jay Plager, Jay Plager, Burbank & Sheldon Stephen B. Judicial Improvements Act of 1990, Title IV, Subtitle II, §§ 408–18, Judicial ImprovementsTitle IV, Act of 1990, §§ 401–18 (codified at various sections of Title 28, U.S.C., including 28 U.S.C. §§ 401–18 (codified at various 28 U.S.C. sections of Title including 28, U.S.C., at 57 & n.127; TATES which established the short-lived National Commission which established the short-lived ESEND See S Id. Id. See R In the 1980s, Congress impeached three federal judges, three Congress impeached In the 1980s, Act of 1990, Judicial Improvements As part of the to incorporate this expanded regulatory authority. Remus, 389 384. 383. did the Judicial its own rules Not until 2009 Conference adopt § 351(a). 28 U.S.C. 388. (1990). Stat. 5089 104 No. 101-650, L. Pub. 389. 385. Remus, 386. 390. 387. (codified (1989) 103 Stat. 1716 101-194, No. L. Ethics Reform Act of 1989, Pub. 28 U.S.C. § 372 note (National Commission on Judicial Discipline and Removal Act). Discipline and Removal Act). Judicial Commission on note (National 372 U.S.C. § 28 ISRESPECTFUL NITED NTRIKIN n.121 (citing R n.121 5 U.S.C. app. § 109(8) (defining “judicial employee”), § 109(10) (defining “judicial 109(8) (defining “judicial employee”), § 109(10) § app. 5 U.S.C. officer” to (defining Court Justices); include Supreme § 7353(d)(1)(C) 5 U.S.C. branch personnel, for judicial Conference “supervising ethics office” to include Judicial including judges). In early 1990, the Judicial the Conference amended Judges about the difficulty of removing federal judges”); about the difficulty of removing federal judges”); accompanying text. text. accompanying ScienceJudicial Discipline and the Lessons of Social expressly defining what qualifies as judicial “misconduct.” expressly defining what qualifies as judicial § 372 note). § 372 (describing Act as granting the federal judiciary “formal authority cases ofto deal with misconduct and disability” while reserving to Congress “the ultimate power of removal for that action”). warranting the few cases n.128and amendments pending in 1989). (citing proposed bills (2012)); Remus, 7353 § 5 U.S.C. at as amended U renewing concern about misconduct and the effectiveness of and the effectiveness of about misconduct renewing concern oversight. Judicial Conference Reform and Removal Congress enacted the Judicial Discipline Act, Removal. on Judicial Discipline and D it encompassed. what over the authority constitutional ceded its sweeping effectively Conference, courts to the Judicial federal and Act of 1990 and Removal Reform Discipline 4. The Judicial and Removal on Judicial Discipline the National Commission E conduct. standards of judicial enforce federal employees, Act, further restricting the 1978 Ethics receiving outside judges and Justices, from including federal the Judicial and gifts while broadening honoraria, income, authority. Conference’s enforcement at 40357-aap_18-2 Sheet No. 81 Side A 06/11/2018 08:46:58 A 06/11/2018 81 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 81 Side B 06/11/2018 08:46:58 , 397 In In , 77 , 152 EPORT 396 National National ROCESS P OMMITTEE C see generally as long as 1980: A R 393 TUDY S Cynthia Gray, CT OF A CT see A RACTICE ANDRACTICE ]. P ISABILITY D ISABILITY D PPELLATE until it deviated significantly it deviated until at 61 (noting Congress’s “willing[ness] to “willing[ness] at 61 (noting Congress’s A , and the Conference appeared , and the Conference was generally favorable to the favorable generally was see id. see 391 ONDUCT AND note 364, at 58 & n.132; at 58 & n.132; 364, note C ONDUCT AND 2006 Study Committee Report Committee Study 2006 OURNAL OF OURNAL C supra J ) 6/4/2018 3:17 PM UDICIAL Other legislation that would have involved Other legislation that would have HE J 392 note 384 (summarizing National Commission’s work). Commission’s(summarizing National work). 384 note 1 (Sept. 2006), https://www.supremecourt.gov/publicinfo/breyer 1 (Sept. 2006), https://www.supremecourt.gov/publicinfo/breyer ELETE 395 D note 364, at 54; 364, at 54; note UDICIAL OT N supra supra O USTICE supra supra But the Conference had gradually amended the had gradually amended But the Conference J at 60 (noting that the “Conference appeared unresponsive to calls unresponsive for the at 60 (noting that the “Conference appeared ABA Model Code at 60. at 60. 1(D 394 271, 271 (Mar.-Apr. 1994) (summarizing recommendations); recommendations); 1994) (summarizing (Mar.-Apr. 271, 271 id. at 280–81; Remus, at 280–81; at 58 (referring to the federal judiciary’s “increasingly insular and assertive judiciary’s “increasingly to the federal at 58 (referring HIEF ESEND C Id. Report of the National Commission on Judicial Discipline and Removal Discipline and Report of the National Commission on Judicial Id. See id. R For a time, Congress seemed at ease with allowing the at ease with allowing Congress seemed For a time, 393. Act relies branch investigation of upon internal judicial a word, the [1980] “In 392. 391. 394. Remus, 395. 396. 397. 21st Century Department of Justice Pub. L. No. Appropriations Authorization Act, NTRIKIN UDICATURE MPLEMENTATION OF THE other . . . .” judges J F.R.D. 265 (1993). (1993). F.R.D. 265 I committeereport.pdf [hereinafter Commission on Judicial DisciplineCalls for Moderate Changes and Removal J Judicial Conference, finding that its implementation of the 1980 of the 1980 that its implementation Conference, finding Judicial other Among effective. was mostly Conduct Act Judicial retain Congress to urged the Commission recommendations, removing federal for method as the exclusive impeachment office. judges from judicial conduct to self-regulate federal judiciary for U.S. Judges Code of Conduct the from for regulating to outside suggestions increasingly resistant judicial conduct. of federal judges failed. Congress in regulating the conduct to Title 28 governing the 2002, Congress added a new chapter against federal judges, filing and processing of complaints subsection of the 1980 Judicial Conduct superseding a minor the 2002 legislation Act. By defining “judge” narrowly, 270T report final Commission’s Act of 2002 5. The Judicial Improvements and political was responsive to public the Conference concerns. E TO THE Burbank & Plager, & Plager, Burbank acquiesce in judicial self-regulation” after 1980 Act). self-regulation”judicial Act). acquiesce in after 1980 approach”); introduction of relatively moderate accountability measures . . . aimed at increasing judicial at increasing judicial . aimed . . introduction of relatively moderate accountability measures judicial conduct regulation”). quality of legitimacy and improving the (2002) (Judicial Improvements Act of Stat. 1758, 1848–56 116 11041–44, §§ 107–273, (2012)). 351–64 §§ U.S.C. 28 amended at 2002, codified as 40357-aap_18-2 Sheet No. 81 Side B 06/11/2018 08:46:58 B 06/11/2018 81 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 82 Side A 06/11/2018 08:46:58 takes a Unnecessary Unnecessary simply follows Interview: Giving text accompanying notes See Code of Conduct for Code of Conduct Code for U.S. Judges Code for U.S. that consolidated the that consolidated 400 Gordon J. Quist, Gordon Lynn A. Baker, Note, Note, Lynn A. Baker, Code for U.S. Judges 1, 10 (June 2008). Judge Quist, who 1, 10 (June 2008). Judge Quist, who 11043(a)(1)(B), 116 Stat. 1758, 1855 1855 116 Stat. 1758, 11043(a)(1)(B), ௗ had become increasingly increasingly had become See see 398 RANCH B Code of Conduct for U.S. Judges Conduct for U.S. Code of HIRD He explained that the He explained Id. , T 40 401 ) 6/4/2018 3:17 PM 271 ELETE ABA Model Code ABA Model D note 364, at 65. 364, at note note 364, at 65 & n.176; n.176; & 364, at 65 note ISSENT note 399, at 10. at 399, note OT D N But he disclaimed concern that the amendments. O continued in the form of “guiding principles by form of “guiding principles continued in the supra supra supra In the first decade of the new century, however, the of the new century, however, In the first decade supra supra Id. 1(D 399 ESEND R While the While The ABA has developed a more detailed regulatoryThe ABA has developed approach in its Model Code. by are guiding principles Our Canons white. Regulations tend to be black and try Judiciary toto get the whole . [We] . . judges should abide. which [federal] recognizing that there are vast principles, to achieve these adhere to and aspire areas of judgment. , 94 Yale L.J. 1117, 1122 n.31 (1985) (noting that 28 U.S.C. § 372(c)(1) omitted§ any that 28 U.S.C. (1985) (noting n.31 1122 94 Yale L.J. 1117, , 398.a term ‘judge’ means “[T]he provision: new the following Act added 2002 The 399. Remus, 400. Remus, 401. Quist, ISRESPECTFUL NTRIKIN Advice on Ethics Seldom Simple (2002)). The 1980 Judicial Conduct Act did not preclude anyone from filing complaints filing Act did not preclude anyone from Conduct Judicial 1980 (2002)). The against Justices alleging misconduct or disability. circuit judge, district judge, bankruptcy judge, or magistrate judge.” 28 U.S.C. § 351(d)(1). 351(d)(1). § U.S.C. 28 judge.” or magistrate judge, circuit judge, district judge, bankruptcy specifically define Act did not Conduct Its predecessor subsection in the 1980 Judicial but rather authorized anyone to file a “judge,” complaint with the appropriate federal court or a federal circuit, district, bankruptcy, against of appeals alleging misconduct or disability (codified at 28 (1980) 2035, 2036 94 Stat. 96-458, § 3, No. L. magistrate judge. See Pub. § 107–273, L. (repealed by Pub. § 372(c) U.S.C. Disability Act of and Judicial Conduct Reform and Judicial Councils The and Improper: 1980 theCommittee Report for and quoting House reference to Supreme Court Justices, complaint against a silent on how any now, are simply rationale). The statutes, then and to address that gap power plenary undoubtedly retains Congress Justice is to be handled. short of initiating impeachment proceedings against a Justice. 468–74 (describing various Congressional proposals that would do so). so). do proposals that would Congressional (describing various 468–74 U.S. Judges rules of than black-letter abide” rather which judges should conduct. regulatory with subsequent revisions, the regulatory with Judicial Conference proposed revisions Judicial Conference no “startling four, but otherwise made Canons into just substantive changes.” D Judicial the beyond Justices Court Supreme put expressly authority. regulatory Conference’s the Revisions to 6. The 2009 E then chaired the Judicial Conference’s Committee on Codes of Conduct, explained that explained of Conduct, on Codes then chaired the Judicial Conference’s Committee its adopts and recommends the [ABA] its Code after “the Committee has always reviewed Model Code.” ABA Model Code more aspirational approach: Id. 40357-aap_18-2 Sheet No. 82 Side A 06/11/2018 08:46:58 A 06/11/2018 82 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 82 Side B 06/11/2018 08:46:58 the the ROCESS 402 P ; RACTICE ANDRACTICE P PPELLATE A for the first time included rules included rules time for the first note 372. 372. note supra , OURNAL OF OURNAL J ) 6/4/2018 3:17 PM HE ELETE D OT N treating litigants, attorneys, or others in a or others in attorneys, treating litigants, O 1(D (A) an allegation that is directly related to the merits (A) allegation that of a decision or procedural ruling. An ruling, calls into question the correctness of a judge’s (A) using the judge’s office to obtain special to obtain special office judge’s the using (A) treatment for friends or relatives; other personal favors accepting bribes, gifts, or (B) office; related to the judicial with parties or discussions having improper (C) in a case;counsel for one side (D) manner demonstrably egregious and hostile activityor making partisan political engaging in (E) partisan statements; inappropriately (F) soliciting funds for organizations; complainants,retaliating against witnesses, or (G) process; participation in this complaint others for their cooperate shown, to good cause refusing, without (H) under these Rules; in the investigation of a complaint or other specific,violating of standards mandatory (I) pertaining to judicial conduct, such as those for and requirements restrictions on outside income financial disclosure. ESEND SeeU.S. Code for Judges R (2) is conduct occurring outside the performance of official the performance is conduct occurring outside (2) on the have a prejudicial effect duties if the conduct might of the business of the administration courts, including a of public confidence substantial and widespread lowering reasonable people. among in the courts (3) does not include: (1) is conduct prejudicial to the effective and expeditious expeditious effective and to the prejudicial conduct is (1) courts. Misconduct of the business of the administration to: is not limited includes, but After the revisions were adopted in March 2009, in March were adopted the revisions After 402. NTRIKIN 272T E Judges Conduct for U.S. Code of were most The rules “misconduct.” defining judicial specifically this writing, “cognizable As of 2015. in amended recently misconduct” 40357-aap_18-2 Sheet No. 82 Side B 06/11/2018 08:46:58 B 06/11/2018 82 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 83 Side A 06/11/2018 08:46:58 and 405 , the 403 the Judicial 404 see alsoU.S. for Code ]; such as personally see generally Governance & the Judicial see generally Governance & , http://www.uscourts.gov/about-federal-courts/ , http://www.uscourts.gov/about-federal-courts/ OURTS C Conduct and Disability Rules Disability Conduct and ) 6/4/2018 3:17 PM 273 TATES ELETE S D ISSENT OT D N O NITED NITED 1(D (B) an allegation about delayan allegation about decision in rendering a (B) the allegationor ruling, unless concerns an improper habitual delaying in or decision motive a particular delay cases. of unrelated in a significant number derogatory remarks irrelevant to the issues remarks irrelevant derogatory complaint is to the extentnot cognizable that it attacks the merits. including a failure to recuse, to a failure including without is more, merits- to be the alleged ruling is the decision or related. If an improper result of parte e.g., a bribe, ex motive, in conduct or improper or ethnic bias, contact, racial a rendering decision or ruling, note 372. 372. note 5 U.S.C. app. § 111(3) (2012) (designating Judicial Conference to administer (designating Judicial Conference (2012) 111(3) § app. U.S.C. 5 , U ESEND Rules for Judicial-Conduct and Judicial-Disability Proceedings, United StatesUnited Judicial-Disability Proceedings, Rules for Judicial-Conduct and See supra R In addition to its many other statutory duties, In addition to its many , , http://www.uscourts.gov/sites/default/files/guide-vol02e-ch03.pdf (May 4, 2016) (May 4, 2016) , http://www.uscourts.gov/sites/default/files/guide-vol02e-ch03.pdf 404. 28 U.S.C. § 331 (requiring Conference to “carry on a continuous study of the (requiring Conference to “carry on a continuous 404. 28 U.S.C. § 331 403. 405. ISRESPECTFUL NTRIKIN operation and effect of the general rules of practice and to recommendand procedure” desirable to promote to those “changes in and additions rules as the Conference may deem simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense”); Conference (emphasis added) [hereinafter Judges Courts Conference regulates the ethical conduct of federal judges Conference regulates the ethical governance-judicial-conference. governance-judicial-conference. his opinions excoriating dissenting Scalia’s many Justice own the Conference’s others appear to meet colleagues and tone was neither His vituperative definition of misconduct. relevant to the issues they points nor his necessary to state frequent outbursts delivering addressed. In particular, his irrelevant to the issues” did not “personally derogatory remarks the excluded from otherwise action, qualify as “merits-related” disrespectful Instead, his definition under subsection (3)(A). by treating subsection 1(D) rhetoric appears to have violated and hostile manner.” egregious “others in a demonstrably Role in Promoting 7. The Judicial Conference’s Ongoing Conduct Judicial Civility and Exemplary D E the 1978 Ethics Act with respect to judicial officers and employees). employees). judicial officers and to Act with respect Ethics the 1978 40357-aap_18-2 Sheet No. 83 Side A 06/11/2018 08:46:58 A 06/11/2018 83 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 83 Side B 06/11/2018 08:46:58 410 ROCESS note 393 P supra , For that reason, reason, For that But most of the of the But most 408 RACTICE ANDRACTICE P . 407 Controversies between Controversies between note 376 and accompanying text. note and accompanying text. 376 409 conduct prejudicial to the prejudicial conduct PPELLATE A See supra supra See 2. (enabling Congress to regulate and make at § But Congress can specify the scope of the Supreme Id. OURNAL OF OURNAL that allege “ allege that J ) 6/4/2018 3:17 PM . Only the judicial disqualification statute, 28 U.S.C. § 455, 455, disqualificationOnly the judicial § statute, 28 U.S.C. . 406 HE see generally 2006 Study Committee Report see generally 2006 Study Committee 515–16. ELETE D supra notes 427–31 and accompanying text (discussing Justice Ginsburg); accompanying text 427–31 and notes OT . art. III, § 1. N notes 380–85 and accompanying text. accompanying and 380–85 notes O infra , Justice Scalia’s judicial colleagues most often most Justice Scalia’s judicial colleagues note 3, at note ONST 1(D C the appellate jurisdiction of the Supreme Court) appellate jurisdictionthe of the Supreme 411 at § 351(a); note 398, supra supra ESEND See Id. See supra See, e.g. R The Constitution famously provides that federal judges provides that famously The Constitution Judicial Conference nor the Court the Supreme But neither 409. U.S. 408. 406. (2012). 351–364 §§ 28 U.S.C. 407. 410. 411. NTRIKIN expressly applies to Supreme Court Justices. Justices. Court to Supreme expressly applies (reporting findings of Committee appointed by Chief Justice Rehnquist and chaired by concerns about deficiencies in complaint Justice Breyer in response to congressional courts of appeals). federal of judges chief processing by Court’s appellate jurisdiction. exceptions to acquiesced in his behavior, remaining silent instead of silent instead remaining acquiesced in his behavior, by his to work their some linked expressing disapproval. Worse, worded dissents, or by using aggressively joining his effective and expeditious administration of the business of the of the business administration expeditious and effective of office by all the duties discharge inability “to or courts,” disability.” or physical mental reason of “good behaviour.” hold office during conduct regulating judicial federal courts over Congress and the the has branch of government which around revolve ultimately good judicial to decide what constitutes constitutional power and support of the behavior. Congress, with the acquiescence authority of this regulatory federal judiciary, has exercised some of it to the federal courts themselves. but has delegated most judicial civility. Through nearly three has set a high standard for Scalia wrote hundreds two Chief Justices, Justice decades, under discourteous and at worst of dissents that were at best of the members though some egregiously disrespectful. Even in Court have championed civility and professionalism Supreme the law, 274T complaints handles standards Conference not subject to Judicial Justice Scalia was he joined the Court in 1986. and discipline once Oversight of Article III Courts 8. Congressional E of every sort to mean define “judge” statutes narrowly relevant Court Justices. Supreme except federal judge Thomas, 40357-aap_18-2 Sheet No. 83 Side B 06/11/2018 08:46:58 B 06/11/2018 83 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 84 Side A 06/11/2018 08:46:58 OF 413 . T note 322 note , (June 25, (June 11, S. C IME supra , T NTEGRITY I Schapiro, Although members Although members see 414 412 dissent); dissent); ISCOURSE D NSTITUTIONAL ,I ]. UBLIC UBLIC Obergefell P This Is What “Jiggery-Pokery” Means This Is What “Jiggery-Pokery” ) 6/4/2018 3:17 PM 275 2011 Year-End Report on the Federal Judiciary AND NCIVILITY I note 102, at 12–13. 12–13. at note 102, 2011 Report ELETE D A. Background: The Scalia Effect A. Background: ISSENT OT supra D N O UDICIAL 1(D , Katy Steinmetz, V. J ESEND R Judges need and welcome guidance on their ethical their ethical on welcome guidance Judges need and and sources suchresponsibilities, Judicial as the invaluable provide Conduct of Conference’s Code of the day, no compilation the end of assistance. But at integrity. ethical rules can guarantee Justice Scalia’s aggressively blunt style of opinion writing style of opinion writing aggressively blunt Justice Scalia’s .E.g. U.S. https://www.supremecourt.gov/publicinfo/year-end/2011year- 31, 2011), (Dec. 412. Jr., John G. Roberts, 414 413. Yalof et al., ISRESPECTFUL NTRIKIN (noting use of “I would hide my head in a bag”). bag”). in a head hide my would “I (noting use of THE 2015), http://time.com/3936188/scalia-jiggery-pokery/ (noting Justice Scalia’s use of “interpretive jiggery-pokery” in and the media attention it drew meant that his reputation for meant attention it drew and the media A team of political circles. incivility extended beyond legal in rhetoric between the scientists studying the differences concluded that Justice Scalia Rehnquist and Roberts Courts as his style the Court, describing fueled “divisiveness” on attack[ed] those “relentlessly “belligerent” and noting that he his ideology or judging philosophy.” disagree with who might witty—rhetoric sometimes Justice Scalia’s aggressive—albeit his dissents as passages from well, was read outside academia media. routinely appearing in the popular of the general public rarely read multi-page court opinions, court opinions, multi-page of the general public rarely read using catchphrases that would Justice Scalia had a knack for even if the opinions in which they attention, attract public of votes on the Court. If appeared had failed to attract a majority D in are They own. of their rhetoric or disrespectful intemperate Scalia that Justice legacy of disrespect for the part responsible opinions. Court’s reported left in the E endreport.pdf [hereinafter [hereinafter endreport.pdf 40357-aap_18-2 Sheet No. 84 Side A 06/11/2018 08:46:58 A 06/11/2018 84 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 84 Side B 06/11/2018 08:46:58 ,36 ,36 ROCESS note 59, at note 59, P supra supra , RACTICE ANDRACTICE at 7 (observing that dissents P id. note 5, at 39 (explaining that issuing at 36. On the other hand, Justice If carefully and concisely and concisely carefully If but see 1924 Canons but see Id. PPELLATE And if the justification for for And if the justification 416 supra A 417 note 19, at 806 (“Certainly a dissenting opinion at 806 (“Certainly note 19, Silent Acquiescence on the Supreme Court on the Supreme Acquiescence Silent supra note 2, at 53 (pointing out that as Supreme Court’s note 6, at 98–99; note 6, at OURNAL OF OURNAL note 5, at 36–37. Justice Scalia explained that note 5, at 36–37. Justice Scalia dissents “can J ) 6/4/2018 3:17 PM HE supra supra supra ELETE D OT N Jones, O , Goelzhauser, Greg , , Kapgan, , Scalia, the record shows that he succeeded. he succeeded. that shows record the a bombastic and disrespectful tone hardly advances and disrespectful a bombastic 1(D 415 . (describing value of dissents); 5 (2015) 3, J. 418 YS ESEND S R But a Supreme Court dissent should do more than generate than more dissent should do Court But a Supreme both the internal Yet Justice Scalia refused to acknowledge note 5, at 4. But dissents’ internal value as part of the Court’s decisionmaking . e.g. See, . See, e.g. . e.g. See, . See, e.g. 418 415 417 416 NTRIKIN USTICE attention. It should educate and enlighten judges, lawyers, law judges, lawyers, and enlighten It should educate attention. of clarify points and help and law professors, students, Justices. the among disagreement that purpose. dissents. Beginning in 1994, and external effects of his biting reflected favorably tradition dissenting that the when he posited that dissents “do not, or at on the Court, he reassured readers the and bitterness among need not, produce animosity least 276T public was rhetoric disrespectful for using motive his attention, future persuade is in part their capacity to publishing dissents readers, E the Justices and can influence the way expressed, its reasoning issues even though it failed to about legal other readers think in The dissent’s role of the majority. garner the support legal thinking and shaping of disagreement clarifying points written in a justify separate opinions does not, however, hyperbole, tone. Disrespectful rhetoric, pointedly vituperative Court reflect dissents attacks in Supreme and personal venom, judiciary. poorly on the entire help to change the law,” but as he readily conceded, “[t]hat effect is most common in the “[t]hat readily conceded, he the law,” but as help to change decisions of intermediate appellate tribunals.” “political nature becomes more easily discerned—both because of the issues it is deciding“political nature discerned—both because of the becomes more easily its Justices, decisions—reverence to the institution, Court’s used in the and the language scarce”). increasingly to be appears importantly, its decisions, and more have higher value in “important” cases);have higher value Scalia, can serve as a rhetorical resource for those who object to a decision.”). decision.”). to a object who those resource for rhetorical as a can serve initially circulated term, an opinion each estimated that up to four times Ginsburg has Ginsburg, of the Court. the opinion internally as a dissent gains sufficient votes to become supra separate opinions “to set forth clear and consistent positions on both sides of the major in the forefront of the intellectual kept the Court has . . . legal issues of the day development of the law”); Sunstein, Canon 34 (providing that a judge should not seek public praise or popularity). or popularity). praise public seek not should judge that a (providing 34 Canon J process does not justify publishing verbose diatribes that reflect a lack process does not justify publishing of respect for judges verbose diatribes whole. a system as judicial American and the 40357-aap_18-2 Sheet No. 84 Side B 06/11/2018 08:46:58 B 06/11/2018 84 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 85 Side A 06/11/2018 08:46:58 422 ], http://www.ca7.us http://www.ca7.us ], Chief Justice 420 Seventh Circuit Standards Seventh some of his own separate some 421 Seventh Circuit Standards Whatever Justice Scalia might have might Scalia Justice Whatever 419 [hereinafter note 348, at 1194–95 (citing several Scalia dissents that (citing several 348, at 1194–95 note ) 6/4/2018 3:17 PM 277 , 135 S. Ct. at 2612 (Roberts, C.J., Scalia & Thomas, JJ., C.J., Scalia at 2612 (Roberts, Ct. , 135 S. supra ELETE D note 5, at 40. Notably, Justice Scalia’s 1994 article addressing note 5, at 40. Notably, Justice Scalia’s 1994 ISSENT OT note 10, at 28. at 10, note D N O Obergefell , supra supra 1(D ESEND R Some of Justice Scalia’s biting rhetoric and sharp rhetoric and sharp Scalia’s biting of Justice Some . e.g. See, See Circuit: Judicial Federal Within the Seventh for Professional Conduct Standards Five lawyers [in the majority] have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the marriage, making a dramatic people will for many cast a cloud over same-sex difficult to accept. that much more social change The majority’s decision is an act of will, not legal judgment. The right it basis in announces has no the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own As a result, the Court . “new insight” into the “nature of injustice.” . . 419. Scalia, 420. Porto, 421. In their decade together on the Court, the current Chief Justice joined twenty-one 422 ISRESPECTFUL NTRIKIN Rehnquist even joined many Scalia dissents, turning a blind eye Scalia Rehnquist even joined many while Chief Justice Roberts do. And they might to any damage rarely joined a Scalia dissent, expression to the line between opinions tread dangerously close and disrespectful hyperbole. of strong disagreement D the Court.” of members it is relationships, effects on intra-Court about dissents’ thought in to engage Court Justice for a Supreme much worse to do so. appellate judge for any other rhetoric than disrespectful value of the diminish dissent cannot A heated the precedential other tone toward it takes a combative opinion. But if Court’s toward appellateJustices (or even counsel), the dissenting threatens and unfavorably on the opinion reflects judicial author as an institution. the Court public respect for reflect poorly but they read, to be entertaining might witticisms In particular, failed to do anything about them. on the Court that Court during and Roberts, who led the Chief Justices Rehnquist responsibility for allowing his tenure, bear some Justice Scalia’s between to cross “the rhetorical Rubicon dissents routinely and personal attack.” professional critique E courts.gov/rules-procedures/rules//rules.htm#standards. The courts.gov/rules-procedures/rules//rules.htm#standards. include recommendations on improving civility among judges, particularly in judicialamong particularly include recommendations on improving civility judges, there is room for before joining the Court, opinions. As Justice Ginsburg once noted improvement. Ginsburg, dissents did not mention the standards adopted by thethen-new civility Seventh Circuit in 1992. Other Judges’ Duties to Each reasoning). Court’s excoriated the part. in only of them dissents written by Justice Scalia, two dissenting): 40357-aap_18-2 Sheet No. 85 Side A 06/11/2018 08:46:58 A 06/11/2018 85 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 85 Side B 06/11/2018 08:46:58 ROCESS P (Feb. 13, 2016), http: 2016), 13, (Feb. note 102, at 12–13. at 102, note TAR S RACTICE ANDRACTICE note 322. 322. note P supra supra ITY Historians will assess Historians supra .C 423 most certainly did not certainly most AN 426 , K PPELLATE He frequently reminded his reminded He frequently A 425 note 323; Schapiro, OURNAL OF OURNAL note 349, at 23; Yalof 23; at 349, note al., et J supra Reaction to Antonin Scalia’s Death: “A Lion on the Court ) 6/4/2018 3:17 PM 424 HE 135 S. Ct. at 2631 (Scalia, J., dissenting). Justice Scalia’s 2631 (Scalia, J., dissenting). Justice S. Ct. at 135 supra ELETE D is a classic of this type: is a classic OT ). N O , Greenhouse, , Greenhouse, , Voros, 1(D Obergefell, , , David Helling, Obergefell ESEND See, e.g. R Before joining the Court, Justice Ginsburg, who would Justice Ginsburg, who the Court, Before joining Justice Scalia will be missed, but not because he was a role was a role he not because but missed, will be Scalia Justice fragile aware of the Court’s apparently Justice Scalia was .E.g. . e.g. See, .E.g. depend upon the aid of the executive arm” and the States, “even for the efficacy for States, “even the arm” and aid of the executive the depend upon People a takes from the of ours that decision With each of its judgments.” not based that is unabashedly decision question properly left to them—with each majority of this Court—we of a bare judgment” “reasoned but on the on law, our impotence. of reminded to being step closer move one invalidates the marriage laws of more than half the States and orders the more than invalidates the marriage laws of transformation of a social has formedinstitution that the basis of human society think we are? we do . Just who . . for millennia . goeth we know, pride; and pride, Hubris is sometimes defined as o’erweening The Judiciary is the “least dangerous” of the federal branches before a fall. ultimately and must but merely judgment; Will, Force nor “neither because it has (citation omitted 425 424. 423 426 NTRIKIN approach in approach in elevate public or scholarly opinion of the Court. Instead, his elevate public or scholarly opinion cast it into disrepute. dissents scathing on the Court, expressed friend Justice Scalia’s closest become 1992, soon after the dissent. In her distaste for disrespectful Ginsburg then-Judge beginning of the civility movement, observed that if judges to be respected, their decisions expect (quoting Senator//www.kansascity.com/news/politics-government/article60286391.html Blunt). 278T judicial conduct. exemplary model for Among the most institutional legitimacy. hold on its own critique of his in his dissents was a repeated offensive comments even underscore to reflect or for seeming colleagues’ opinions “impotence.” the Court’s own E know what cannot yet We on the Court. of his tenure the impact will be received judicial writing his will be—how legacy his true But Justice and scholars. judges, law students, lawyers, by future the influence of less for the will be remembered Scalia likely in for his intemperance his dissents than reasoning behind expressing his views. own posterity. the Court’s tenuous hold on its fellow Justices of proved himHistory has already right on that score. The on the Court” conservative “lion Id. Id. and an Unwavering Defender of the Constitution” Defender of the Unwavering and an 40357-aap_18-2 Sheet No. 85 Side B 06/11/2018 08:46:58 B 06/11/2018 85 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 86 Side A 06/11/2018 08:46:58 The 430 The Disinterested at 1185 n.* Whether at 1185 n.* Whether Id. as the statesmanlike ‘settlement’ of a Roe . 754, 757 (1963)). 757 . 754, 427 ROBS .P ) 6/4/2018 3:17 PM 279 ELETE ONTEMP note 348, at 1197. 1197. at note 348, note 348, at 1186 (quoting Brainerd Currie, note 348, at 1186 (quoting Brainerd Currie, D ISSENT OT &C D N supra supra O AW 1(D She found these examples regrettable, asserting that regrettable, asserting that examples She found these including several separate opinions authored by Justice separate opinions authored by including several at 1194–95 & nn.49–51, 54, 57 (citing Planned Parenthood v. Casey, 505 U.S. U.S. Casey, 505 57 (citing Planned Parenthood v. 54, & nn.49–51, at 1194–95 at 1194. at 1194. , 28 L , 28 431 429 ESEND 428 Just as her article went to press, Judge Ginsburg was nominated by President was nominated Ginsburg Judge Just as her article went to press, Ginsburg, R [T]he effective judge . . . strives to persuade, and not to and not . strives to persuade, . . judge effective [T]he She speaks pontificate. restrained” and “a in moderate against, a diatribe not with, in a dialogue voice, engaging and state authorities, government, of departments co-equal even her own colleagues. . .Id. . Id. . Are there lasting rifts sparked by sharply worded dissents? Justice Scalia spoke spoke Justice Scalia dissents? worded lasting rifts sparked by sharply Are there have said: “I doubt whether any two [J]ustices to that question nicely. He sharply, more or any any more regularly, dissented from one another’s opinions Justice William Brennan and I. I always than did my former colleague that I think and my best friends on the Court, of one however, considered him, might beThe same said today about my friendship feeling was reciprocated.” with Justice Scalia. , cannot be taken seriously.”)). taken be , cannot 431 428 429 430 427. Ginsburg, ISRESPECTFUL NTRIKIN Judge Ginsburg would have penned the same article after her confirmation as Justice the same article is penned would have Ginsburg Judge the then sidestepping raising and dissents, wrote again about she 2010, highly doubtful. In dissents effect on the Court’s have a negative question whether internal working relationships: Clinton to serve the Supreme Court with Justice on Scalia himself. 833, 981 (1992) (Scalia, J., concurring in part and dissenting in part) (“I must . . . respond . respond . . in part) (“I must and dissenting in part J., concurring (1992) (Scalia, 833, 981 in today’s opinion, which it is beyond human outrageous arguments to a few of the more “To portray . . . nature to leave unanswered.” that is worth preserving, is nothing divisive issue, a jurisprudential Peace of Westphalia (Scalia, 644 (1992) 638, 636, 633, U.S. 577, Weisman, 505 v. less than Orwellian.”); Lee to our history,” “incoherent,” as “oblivious Court’s opinion J., dissenting) (describing 719, U.S. disaster”); Morgan v. Ill., 504 jurisprudential “a ludicrous,” and “nothing short of Court strikes a further blow against . the . . J., dissenting) (“Today, (Scalia, 751–52 (1992) Health Reproductive Webster v. penalty.”); the People in its campaign against the death in part) (Scalia, J., concurring (“Justice O’Connor’s 490, 532 (1989) U.S. Servs., 492 rule of judicial restraint’ requires us to avoid reconsidering . that a fundamental . . assertion Roe Third State Scalia. sensitive case, politically emotion-laden, most “even in the to upbraid writing does not require a judge effective opinion or to get it right.” light see the failing to colleagues for Court was absolutely to the Supreme nominee soon-to-be next correct. D the to appropriate reserve of a degree write with should they office: judicial as classified she examples of opinions Then she cited more heat than of other judges “that generate “condemnations” light,” E 40357-aap_18-2 Sheet No. 86 Side A 06/11/2018 08:46:58 A 06/11/2018 86 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 86 Side B 06/11/2018 08:46:58 be Code for ROCESS , P note 366 and and note 366 The related The related See, e.g. 435 433 . Uphold the Integrity and RACTICE ANDRACTICE see also supra see also supra P Avoid Impropriety and the Avoid Should Should note 5, at 41 (citation omitted)). PPELLATE And it also explains that a A 436 supra supra is primarily aspirational rather than rather aspirational is primarily directly addressed the ethics of opinion ethics of opinion addressed the directly OURNAL OF OURNAL note 371. 371. note J provisions on civility have also evolved over the years. But ) 6/4/2018 3:17 PM note 59, at Canon 19 para. 4; para. 19 Canon at note 59, (quoting Scalia, (quoting HE Code supra ELETE D supra , OT Code of Conduct for U.S. Judges Code of Conduct for U.S. note 372, at Canons 1 & 2 (“A Judge note 372, at Canons N Yet Canon 3 addresses judicial civility, providing judicial civility, providing Yet Canon 3 addresses O B. The Code of Conduct for U.S. Judges U.S. Judges for of Conduct Code B. The note 5, at 4 note 5, at 434 432 1(D 1924 Canons supra supra ABA Model Code ABA Model , at Canon 3(A)(3). 3(A)(3). Canon at cmt. 3(A)(3) Canon at supra supra ESEND 1924 Canons R It is of high importance that of judges constituting a court It is of high importance last resort should to promote use effort and self-restraint solidarity influence of of conclusion and the consequent of yield pride A judge should not judicial decision. to reputation than individual his highly more or value opinion which he should be loyal.that of the court to Except in case on fundamental difference of opinion of conscientious in courts of last should be discouraged principle, dissents resort. The The current .Id. .Id. 435 436 434. aspirational The canons are presented as black-letter standards. 432. 433. The NTRIKIN Independence of the Judiciary,” and “A Judge the Judiciary,” and “A Judge Independence of Activities” Impropriety in All (emphasis added)). Appearance of U.S. Judges U.S. accompanying text. accompanying a full discussion career on the federal bench, spent his entire judicial because Justice Scalia article. For general information about thoseof that process is beyond the scope of this Thode, developments, see commentary elaborates, providing that the duty to be respectful that commentary elaborates, providing to avoid by Canon 3 “includes the responsibility imposed reasonably be interpreted as comment or behavior that could or bias.” prejudice harassment, Ginsburg, 1. Relevant Provisions 1. Relevant writing: in any so far appeared that provision has But nothing like version of the mandatory. official capacity, should “ that a judge, when acting in an courteous to litigants, jurors, patient, dignified, respectful, and and should “require similar witnesses, lawyers, and others” the judge’s control.” conduct of those subject to that another judge has failed judge who has “reliable evidence” take “appropriate action,” with the canons should to comply 280T E 40357-aap_18-2 Sheet No. 86 Side B 06/11/2018 08:46:58 B 06/11/2018 86 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 87 Side A 06/11/2018 08:46:58 438 generally or or generally omits any omits that “[t]he Code of that “[t]he Code of 437 440 Seventh Circuit Standards Circuit Standards Seventh Seventh Circuit Standards 439 note 419: 419: note supra supra Standards for Professional Conduct. Standards for Professional , Judges’ Duties to Each Other Other Each Judges’ Duties to ) 6/4/2018 3:17 PM 281 ELETE Code of Conduct for U.S. Judges Conduct for U.S. Code of D Code of Conduct for U.S. Judges ISSENT OT D N O 1(D direct communication with the judge . . . [or] reporting reporting . . . [or] the judge with communication direct 28 U.S.C. § 331 (“The Chief Justice shall submit to Congress an annual report Justice shall submitChief to Congress an annual report 331 (“The § 28 U.S.C. at Canon 3(B)(5) cmt. Just who the “appropriate authorities” are with respect to the “appropriate at Canon 3(B)(5) cmt. Just who The author’s exhaustive research failed to unearth any evidence that the ESEND Seventh Circuit Standards R In 2011, Chief Justice Roberts took it upon himself to took it upon himself In 2011, Chief Justice Roberts Just as the Just as . See . Id. .Id. 1. We will be courteous, respectful, and civil in opinions,1. We will be courteous, respectful, and civil ever mindful that a position articulated effort is the result of that judge’s earnest to judge by another and the facts correctly. interpret the law will abstain from we disparaging 2. In all written and oral communications, about or demeaning comments personal remarks or criticisms, or sarcastic another judge. will abstain from we disparaging 3. In all written and oral communications, about or demeaning comments personal remarks or criticisms, or sarcastic another judge. 438. 440 437 439 ISRESPECTFUL NTRIKIN the conduct of Supreme Court Justices is the central question of this Part. question of this Part. the central Justices is Court of Supreme the conduct of the proceedings of the Judicial Conference and its recommendations for legislation.”). recommendations its Conference and Judicial of the of the proceedings standard on writing separate opinions, it also fails to provide it also fails to opinions, on writing separate standard in their interactions judges conduct of guidelines for the explicit Appeals States Court of the United another. Ironically, with one twenty-five years example right the set Circuit for the Seventh its ago when it adopted in opinions, be “courteous, respectful, and civil require judges to by another judge is the that a position articulated ever mindful the law and the earnest effort to interpret result of that judge’s in “all must that a judge They also provide facts correctly.” disparaging from . . . abstain communications written and oral sarcastic or demeaning or or criticisms, personal remarks another judge.” comments about 2. Reach of the Congress announce in his annual report to D as “ such authorities.” to the appropriate the conduct opinions, the to judicial regard With E Id. position on the ever taken a Supreme Court has their judicial civility provisions in particular. their judicial civility provisions in 40357-aap_18-2 Sheet No. 87 Side A 06/11/2018 08:46:58 A 06/11/2018 87 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 87 Side B 06/11/2018 08:46:58 ROCESS Code for Code P See Code for See Code . Thus, while. Thus, notes 397–98 and and notes 397–98 Supreme Court Supreme into the disqualification RACTICE ANDRACTICE 443 5 U.S.C. app. §§ 101(f)(11), P , which dictates who , which dictates See at 6. Moreover, Congress in 1974 Congress in 1974 at 6. Moreover, see also supra see also supra Id. Code , § 1, 88 Stat. 1609 (1974) Stat. 1609 § 1, 88 , PPELLATE A Code for U.S. Judges Code for U.S. note 372, at Canon 5 cmt. 5 Canon 372, at note note 412, that the 1978 But he did not mention at 6–7. OURNAL OF OURNAL J supra ) 6/4/2018 3:17 PM Pub. L. No. 93-512 L. Pub. , supra supra note 412, at 3–4. the Chief Justice was relying on the No doubt note 412, at 3. As the Chief Justice recognized, the recognized, Chief Justice As the 3. at note 412, , which does not mention Supreme Court Justices. does not mention Supreme Court , which , HE ELETE D He went on to explain the rationale: on to explain the He went Code supra 442 supra supra OT , , see also 441 N note 372, at 1–2. But his point begs the question. The Conference is “an The Conference is the question. But his point begs at 1–2. note 372, O 2011 Report 2011 1(D 28 U.S.C.372(c)(1) (repealed 2002); § 28 supra supra , by its express terms, does not apply to Supreme Court Justices. But as he as Supreme Court Justices. But its express terms, does not apply to , by , ESEND 2011 Report See R That reflects a fundamental difference between the difference a fundamental That reflects Article III . . . federal courts. Court and the other Supreme it empowers but . , . . Court creates only . . the Supreme . courts . . . lower federal to establish additional Congress . Because the Conference isJudicial an instrument for the its committees lower federal courts, management of the any to prescribe rules or standards for have no mandate other body. at § 455(a); § 455(a); at The Chief Justice also reported in 2011 that the Court had adopted “an internal “an internal Court had adopted the Chief Justice also reported in 2011 that The .U.S. Judges Code for . Report 2011 443 441. 442 NTRIKIN instrument for the management of the lower federal courts” only because Congress in courts” only because Congress instrument for the the lower federal of management restricted behest, expressly 2002, perhaps at the Supreme Court’s its reach to judges of the restrictive definition appeared in the relevant no such Before then, lower federal courts. statute. statute, 28 U.S.C. § 455, and expressly applied those provisions to Supreme Court Justices, expressly statute, 28 U.S.C. § 455, and see id. Judges U.S. accompanying text. accompanying Canon 3C itself does not expressly apply to the Justices, § 455 and its mandatory apply to the Justices, § 455 itself does not expressly Canon 3C unquestionably do. disqualification provisions rules on gifts and extrajudicial resolution” agreeing to comply with Conference compensation. scope provision of the scope provision of amended what was then Canon 3C of the U.S. Judges U.S. statutes requiring financialconceded, disclosures do. But the Compliance section of the But the Compliance to defines “judge” broadly its provisions, with must comply judicial system who is an officer of the federal “[a]nyone mean functions.” judicial authorized to perform under that definition. Justices surely qualify 282T federal lower only to applies terms, its express by Conduct, court judges.” E Ethics Act, with its restrictions and reporting requirements for extrajudicial compensationwith Ethics Act, and gifts, expressly applies to Supreme Court Justices. to resolution comply with Conference voluntarily Adopting an internal 109(10) (2012). rules that mirror suggests that some Justices might question the existing federal statutes constitutionality the Supreme of statutory ethics requirements that expressly apply to the applicability challenged has ever But no direct evidence suggests that the Court Court. of ethics statutes to the Justices, including the 1978 Ethics Act as well as the apply to all federal amended in 1940 to expressly disqualification statute, which Congress note. 455 U.S.C. § the Justices. 28 including judges, 40357-aap_18-2 Sheet No. 87 Side B 06/11/2018 08:46:58 B 06/11/2018 87 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 88 Side A 06/11/2018 08:46:58 , 444 UIDE FOR 445 the G OCKET seethe FJC About :AP ANUAL nonetheless cautions nonetheless M ]. The Federal Judicial Center is a The Federal ]. RITING W UDICIAL Writing Manual , J Writing Manual Writing Judges generally should not write Judges generally note 444, note 29. at ENTER ) 6/4/2018 3:17 PM 283 C 446 supra ELETE , D ISSENT OT D N UDICIAL ., https://www.fjc.gov/about. ., https://www.fjc.gov/about. J O Judges considering whether to dissent should ask Judges considering whether to dissent TR C 1(D Cases that involve emerging legal principles or emerging Cases that involve (emphasis added). Similarly, Judge Wald has wisely cautioned judges against wisely cautioned (emphasis added). Similarly, Judge Wald has EDERAL ESEND Writing Manual R (2d ed. 2013) [hereinafter A dissent that sounds strident or preachyA dissent that sounds contribute to may ill feelings in the court, maydivisiveness and undermine as an court and of the opinion the majority of the authority judges create confusion. Whether may institution, and on the nature ofshould dissent depends and the case the principle at issue. when the principle at issue is dissenting opinions settled has little significance outside the specific and the decision case. that will affect future statutory interpretation in areas are activities of government the bar, the public, and the likelymore than cases of to warrant dissenting opinions significant enough application. The issue should be limited “fever is aroused” as one judge said, but that the judge’s motivation for writing a thedissent should be to further than to vent personal development of the law rather feelings. whether the likelythemselves the benefits outweigh potential costs. The Federal Judicial Center manual on judicial writing on judicial manual Judicial Center The Federal . Id. UDICIAL The temptation can be overpowering for a writing judge to give vent to for a writing judge to give The temptation can be overpowering point of his references to pejorative by longstanding frustrations with a colleague to let muddled”; “reminiscent of Marie Antoinette’s advice “hopelessly view as them eat cake”; “beyond all reason”; fantasy”; “pure speculation and “a “devoid of precedent”; Linnaean leap”; “shoddy”; an “ad hoc judgment”; or even relentlessly dig out old cases law.” Chronic antagonists by “ungoverned old law review articles to show inconsistencies in each other’s positions. Tensions build on a court as judges of all stripes work together over decades. .J 446 445. 444. F ISRESPECTFUL ED NTRIKIN UDGES using intemperate rhetoric in their opinions, citing the animosity that can result: citing the animosity that can result: using intemperate rhetoric in their opinions, F creature of Congress, directed by statute “to further the development and adoption of adoption and “to further statute the development by directed creature of Congress, providing research, United States” by the of courts administration in the improved judicial 90-219, L. Pub. and its committees. Conference support to the Judicial training, and staff Chief (2012)). The 620–629 §§ U.S.C. at 28 amended (codified as 81 Stat. 664 (1967) 621(a)(1); U.S.C. § board. 28 Justice chairs the Center’s governing J D Writing on Opinion Guidelines Center Judicial 3. Federal to write and justices right of judges supports the generally opinions. The separate acknowledging wrong reasons, for the doing so judges against cost.” opinions are written at a potential that “[d]issenting E 40357-aap_18-2 Sheet No. 88 Side A 06/11/2018 08:46:58 A 06/11/2018 88 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 88 Side B 06/11/2018 08:46:58 , ROCESS P What What , however 448 . Writing Manual Manual Writing RACTICE ANDRACTICE P Justice Scalia amounted to Justice Scalia amounted PPELLATE Personal attacks, offensive attacks, offensive Personal A note 444, at 29 (emphasis added). Judges should, for should, for at 29 (emphasis added). Judges note 444, OURNAL OF OURNAL note 5, at 33 (disapproving “separate concurrences that are note 5, at 33 (disapproving J ) 6/4/2018 3:17 PM HE supra supra ELETE , D note 31, at 797 (emphasis added) (criticizing 31, at 797 (emphasis note injudicious dissents 447 are highly unfortunate at this time if they ever this unfortunate at are highly OT N O Scalia, supra 1(D note 90, at 1381. 90, at 1381. note see also ESEND Writing Manual Pound, R had a place in the common-law judicial process the common-law a place in had well-intentioned and motivated onlywell-intentioned by sincere convictions and motivated of particular legal as to the precise content and application precepts[,] although some judges believe that expressing moral outrage outrage moral that expressing some judges believe although be sometimes may indignation and restrained appropriate. Maintenance of our characteristic American constitutional- that the courts hold, as they have in demands legal polity the past, the respect and confidence of the public. fromamounts to attacks on our courts within A dissenting opinion should not simply slash slash not simply opinion should A dissenting at the majority or its author. opinion used be not tone should a condescending or language, In 1953, long before the beginning of today’s civility before the beginning of today’s In 1953, long supra supra The result is often,or even consciously, to let their heartfelt unconsciously likes their rhetoric. into seep judges or dislikes for other Most of the considerations applicable to dissenting opinions alsoMost of the considerations applicable to dissenting apply to opinion simply to add a write a concurring should not judge . A . . concurrences. point of view or personal statement that does not further either the decisional or to write a whether deciding majority opinion. In of the educational value Am I writing this for ask the question: concurring opinion, the judge should the court? good of myself or for the C. Effects of Incivility in Dissent on Judicial System Integrity in Dissent on Judicial System Incivility C. Effects of at 30; 447. 448. NTRIKIN movement, Professor Pound expressed concern about the impact the impact Pound expressed concern about Professor movement, the judicial system. of on the integrity of “heated” dissents authored by dissents Far too many He routinely attacked his stinging attacks from within. for expressing out by name) colleagues (often singling them 284T the dissent, write a to judge decides when a And E the opinion: of and tone the content in choosing urges caution Wald, similar reasons, exercise restraint in writing concurring opinions: opinions: similar reasons, exercise restraint in writing concurring Id. written only to say the same thing better than the court has done, or, worse still, to display court” and asserting feeling on the issue before the the intensity of the concurring judge’s as one of the and their existence as an abuse, “such separate opinions that he regarded all”). opinions at separate allowing any arguments against repeatedly issued by California Supreme Court Justice Jesse Carter). Jesse Court Justice by California Supreme repeatedly issued 40357-aap_18-2 Sheet No. 88 Side B 06/11/2018 08:46:58 B 06/11/2018 88 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 89 Side A 06/11/2018 08:46:58 .U.L. AL Code of , 28 V Seventh Circuit see also ABA Model see also ABA Model , the and to be “patient, 452 note 97. note 97. Seventh Circuit Standards ,” supra supra ABA Model Code note 348, at 1194. at 1194. 348, note —the group most vulnerable to the vulnerable to —the group most note 372, at Canon 3(A)(3) cmt.; note 372, at Canon 3(A)(3) , and the supra supra 450 , the at Canon 1, R. 1.2 cmt. 5 (describing at Canon 1, R. 1.2 test for appearance note 2, at 323 (referring to the sarcasm and derogatory tone and derogatory (referring to the sarcasm note 2, at 323 supra id. ) 6/4/2018 3:17 PM 285 , The Search for Renewed Civility in Litigation The Search for Renewed note 5, at 39; Senior, Senior, at 39; note 5, ELETE , Ginsburg, , Ginsburg, supra D , ISSENT OT supra supra D N Justice Scalia sometimes said that he wrote his said sometimes Justice Scalia O 451 449 1924 Canons 1(D note 371, at Canon 1, R. 1.2 (requiring judges to “avoid impropriety and note 371, at Canon 1, R. 1.2 (requiring the see also, e.g. see also, Scalia, HEMERINSKY ); ESEND Code for U.S. Judges Code for U.S. R Judges must, by and by example comments in written in the courtroom. civility of tone proper opinions, set the current volumes of peruse the pages of One has only to demeaning vitriolic and comereported cases to upon condemnations by the score of a court, judicial colleagues’ are role Like it or not, judges opinions, or attorneys. models cannot ask lawyers Judges profession. to accept a in our which theydo not to standard of professional conduct abide. The Disrespectful Scalia-style judicial opinions not only reflect only not opinions judicial Scalia-style Disrespectful supra .See , . 513, 519–20 (1994) (reporting on the then-recently adopted adopted on the then-recently (reporting (1994) 519–20 . 513, 450 452. 449. C 451. Marvin E. Aspen, ISRESPECTFUL EV NTRIKIN Standards characteristic of Justice Scalia’s written opinions: “I think that this sends exactly the wrong message to law attorneysstudents and about what type of discourse is appropriate in a another”). to one in speaking what is acceptable formal legal setting and R Code appearance of impropriety.”); Now that Justice Scalia is no longer a member of the Supreme a member Scalia is no longer Now that Justice every that to ensure initiative the take must Court, the Justices written for the Court or as one of its published opinions, whether of civility for all other courts a separate opinion, sets an example and judges. differ in some respects, but they share an essential norm an respects, but they share differ in some confidence in the integrity expecting judges to promote “public of the judiciary and impartiality D the criticized and often his own from that differed of view points fellows authored by his including those prior opinions, Court’s years earlier. just a few they the judicial system; the Court and the integrity of poorly on professional about acceptable wrong message send the demeanor. students dissents for law E the beginning of his negative tone. Yet from influence of his his duty to set a good have understood must judicial career, he are not appropriate behavior Calls judges to model for example. new: Conduct for U.S. Judges 40357-aap_18-2 Sheet No. 89 Side A 06/11/2018 08:46:58 A 06/11/2018 89 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 89 Side B 06/11/2018 08:46:58 . , ROCESS P also included a ABA Model Code Model ABA ABA Model Code Because the Because the Heffernan v. City of Heffernan v. 454 at Canon 2, R. 2.3 cmt.R. 2.3 2, Canon at cf. id. are even more expansive ; RACTICE ANDRACTICE P 1924 Canons supra e Scalia’s dissents were e Scalia’s dissents especially when acting acting when especially . 957, 962 (1999) (“[S]ome judges (“[S]ome . 957, 962 (1999) 453 EV at Canon 2, R. 2.3(A), (B) (requiring at Canon 2, R. 2.3(A), PPELLATE id. A .L.R LA note 59, at Canon 10 (providing that judges that judges (providing 10 59, at Canon note note 412, at 3–4. This resistance may reflect the resistance may reflect the This 412, at 3–4. note note 372, at Canon 3(A)(3). The 3(A)(3). at Canon 372, note , 51 F note 1, at 435 (“Dissent for its own sake has no value, Seventh Circuit Standards supra , note 419, at R. 1, 2 (requiring judges to be “courteous, to be “courteous, judges 2 (requiring R. 1, at note 419, expects judges to act when one of their number fails to act when one expects judges to supra supra Civility Among Judges: Charting the Bounds of Proper of Proper Bounds the Charting Judges: Among Civility OURNAL OF OURNAL supra supra , J supra supra , ) 6/4/2018 3:17 PM Code supra supra the Court only through its opinions, every the Court only HE , ELETE text accompanying note 437, text accompanying note D See OT Brennan, 1924 Canons 1924 N O 2011 Report 2011 , William G. Ross, 1(D see also See See 455 ESEND Code for U.S. Judges Code for U.S. R The Justices should accept their duty to model civility and civility and accept their duty to model The Justices should . e.g. See, note 371, at R. 2.8(B). The The at R. 2.8(B). note 371, 455. A Justice’s freedom to dissent does not—or should not—include authority to 453. 454 NTRIKIN Criticism by Judges of Other Judges goose is normally sauce for the gander.”). gander.”). for the sauce goose is normally an Court as counsel, parties, or the appellate express disrespect for judicial colleagues, institution. judge to “perform the duties of judicial office . . . without bias or prejudice” and barring or prejudice” and . without bias . . the duties of judicial office judge to “perform prejudice”); or “bias showing from or conduct” words “by judge to include “epithets; slurs; demeaning nicknames; negative or prejudice 2 (defining bias stereotyping; attempted threatening, intimidating, humor based upon stereotypes; or hostile personal characteristics”). to irrelevant references acts . . . and supra Seventh Circuit Standards from disparaging personal remarks or respectful, and civil in opinions” and to “abstain criticisms, or sarcastic or demeaning comments”). And the courtesy provision. of justice”). the administration in involved to “everyone courteous” “should be the for the law, what is sauce (“[I]n (2016) 1412, 1418 Ct. 136 S. ___, Paterson, ___U.S. in an adjudicative capacity. This norm does not call for artificial call for artificial norm does not capacity. This in an adjudicative to expected are appellate judges indeed, consensus; judicial on to disagree and sometimes cases differently approach standards for rules, and every set of canons, But outcomes. judicial expectation of an conduct has incorporated judicial against measured and courtesy. And dignity, respect, civility, of Justic many any of these guideposts, outside the norm. standards of with of resisting calls to comply courtesy instead to all other federal judges. conduct that apply that a perception minds in reasonable create of impropriety as “whether the conduct would . impartiality, . . that reflects adversely in . . . conduct on the judge’s . engaged . . the judge temperament, or fitness asto serve a judge.”); 286T and courteous,” respectful, dignified, public hears from civility and exemplify must opinions Justice’s published dignity. E Justices’ knowledge that the meet its standards. have been known to cast aspersions upon the competence, diligence, integrity, or diligence, integrity, or to cast aspersions upon the competence, have been known temperament of should categorically abstain other judges. Judges from such comments from the dignity of the judicial system and tend to impugn its because they detract integrity.”); and can threaten the collegiality of the bench.”). collegiality of and can threaten the includes similar provisions emphasizing patience, dignity, and courtesy. includes similar provisions emphasizing patience, dignity, 40357-aap_18-2 Sheet No. 89 Side B 06/11/2018 08:46:58 B 06/11/2018 89 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 90 Side A 06/11/2018 08:46:58 The 459 5 U.S.C. 460 see also and has advocated for and has advocated notes 376 & 441; 458 apply to the Justices. . 209, 242 (1993) (“[P]ermitting Congress to Congress 242 (1993) (“[P]ermitting . 209, He has criticized the extreme the extreme He has criticized See supra EV 457 .L.R A Who May Discipline or Remove Federal Judges? A Federal Judges? Who May Discipline or Remove note 2, at 313. 313. at 2, note D. Possible Solutions Solutions D. Possible ) 6/4/2018 3:17 PM 287 A dissent of this type could be preserved as part of the case preserved A dissent of this type could be . ELETE supra , 142 U. P D , ISSENT OT 456 D N O 1(D at 323 (“No justice in Supreme has Court history consistently written with the at 328. Dean Chemerinsky observes that “with the exception of a few laws, the at 324–25 (recognizing that the Court “believes that the discipline of word and the discipline of word and that that the Court “believes (recognizing at 324–25 But the relevant statutes that do apply are significant. The Ethics in Government Ethics in Government significant. The are relevant statutes that do apply the But HEMERINSKY , Peter M. Shane, M. Shane, , Peter ESEND Id. Id. R It is too late to prevent the publication of intemperate Scalia intemperate publication of late to prevent the It is too that in several respects, has pointed out Dean Chemerinsky the that has recommended Additionally, Dean Chemerinsky The Court could adopt internal operatingThe Court could rules that limit the number of published . Id. . Id. 456. already applied financial and disclosure requirements Congress has 457. C 458 460 459. ISRESPECTFUL NTRIKIN disqualification standards to the Justices. The 28 U.S.C. § 455(a). 4 § 109(10); app. app. 4 § 101(a), (d), (f)(11); 5 U.S.C. constitutionality longstandingof those ethics statutes has never been seriously questioned. See, e.g. Constitutional Analysis pose a significant threat to judicial would not disciplinary procedures authorize judicial powers.”). of separation or the independence dissents. But anticipating improved judicial civility in the future, the future, in judicial civility improved But anticipating dissents. and legislative several proposals highlights this section to address judicialinitiatives suggestions including misconduct, of conductthat existing standards apply to Supreme should Court Justices. by the Court 1. Internal Action failure to communicate of a “monumental the Court is guilty public.” with the American Code of Conduct for U.S. Judges D dissents in Justice Scalia’s sarcasm E including Court communications, in Supreme improvements for published opinions. word and page limits” “presumptive page limits leads to better briefs,” and opining that “[t]he same is true for the Court”). But same is true for the Court”). But “[t]he page limits leads that to better briefs,” and opining he offers no specifics. pages allocated to separate opinions. It is difficult to justify publishing a disrespectful publishing dissents seemed only to encourage when dissenter, particularly opinion of a lone Justice Scalia frequent,to write more ever more disrespectful longer, and dissents that often disparaged the Court itself. The also disqualify any Court could separatedisrespectful opinion from publication record, but might appear only on the Court’s website or elsewhere instead of being instead of being website or elsewhere the Court’s appear only on record, but might Court. of the opinion published with the Supreme to the not applicable must follow are that all other judges laws regulating ethics Court.” sarcasm of Justice Scalia.”). sarcasm of Justice Scalia.”). Act, which requires financial disclosures applies to by federal employees, expressly the which requires Act, 40357-aap_18-2 Sheet No. 90 Side A 06/11/2018 08:46:58 A 06/11/2018 90 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 90 Side B 06/11/2018 08:46:58 to See See 461 If , the , the 4, 4 Code 462 Supreme Supreme ROCESS Code for Code . P Code UDICATURE note 412, at 5, 11 at 5, note 412, note 412, at 5. The note 412, at 5. , 95 J Code for U.S. Judges https://www.c-span.org/ https://www.c-span.org/ supra supra . , supra supra RACTICE ANDRACTICE , P supra applies, calling statements to the available at ] (calling on Court to apply (calling on Court ] to its own members. to its own Code 28 U.S.C. § 351(d)(1), this means only means this 351(d)(1), § 28 U.S.C. 2011 Report 2011 5 U.S.C. app. §§ 501–02, 503(3), 505(2). 503(3), 505(2). §§ 501–02, app. 5 U.S.C. PPELLATE note 440, 440, note see A , and accompanying text. Second, the Second, accompanying text. , and Code to Justices). to Justices). but see 2011 Report but see 2011 see also supra see also Code Code OURNAL OF OURNAL J Justices and the Code Justices and the note 441, ) 6/4/2018 3:17 PM . The Justices themselves are apparently not of one mind as to Justices themselves are apparently . The HE See ELETE at 6–7. But the statutoryat 6–7. provisions that deal with financial D supra does not apply to the Supreme Court, Justices Kennedy and Breyer and Kennedy Court, Justices to the Supreme does not apply OT Hearing Before the H. Appropriations Subcomm. on Fin. Servs. & Servs. & Subcomm. on Fin. Hearing Before the H. Appropriations Id. , N Supreme Court Justices and the Code of Conduct and the Code of Supreme Court Justices O does not mention any Court resolution to comply with the Court resolution to comply any not mention does does not. does , and accompanying text; and accompanying , , text; and accompanying provisions. First, the mandatory disqualification provisionsprovisions. First, the mandatory disqualification of 28 U.S.C. 1(D 5 U.S.C. app. 4 §§ 101(a), (d), (f)(11), 109(10). The judicial disqualification disqualification judicial The 109(10). (d), (f)(11), 101(a), §§ 4 U.S.C. app. 5 note 441, to Justices). , 112th Cong., 1st Sess. (Apr. 14, 2011), 2011), Sess. (Apr. 14, Cong., 1st , 112th supra Code supra ESEND See Code R In their Congressional testimony, both Justice Kennedy and Justice Breyer Breyer Justice and In their Congressional testimony, both Justice Kennedy Although the Judicial Councils Reform and Judicial Conduct and Disability Act of Disability and Judicial Conduct and Councils Reform Although the Judicial Justices Breyer andmisunderstood the question as well as the may have Kennedy . See applies to the extent that the Court has adopted an internal resolution to voluntarily 2011 Report 2011 462 461. Editorial, NTRIKIN contrary a reflection of “wrong thinking.” He also reported that he consults the ethics rules the ethics that he consults reported also He thinking.” contrary a reflection of “wrong whether the Court has already done so. Asked at a 2011 congressional hearing why the whether the Court Judges U.S. Code for the responded that in harmony. that were not entirely Justice Kennedy testified in ways Code that the his belief Breyer explained comply. Justice U.S. Judges U.S. emphasized the unique role of Justices who, unlike other federal judges who can be be who can other federal judges who, unlike unique role of Justices emphasized the has suggested to sit” to avoid a tie vote. But research “duty have a replaced if they recuse, does or herself . . . him- justice recuses fraction of cases in which one small that “in only a Black Ryan Courts.” equally divided not produce “recusals generally do a tie result,” and (July–Aug. 2011) [hereinafter [hereinafter (July–Aug. 2011) The for federal district judges, as well as outside ethics other resources. experts and Court 2012 Budget Gov’t Gen. 288T proposal. the same has advanced Society Judicature American or even statutory, constitutional, agrees. No This author adopting an the Court from prevents impediment jurisprudential the to apply resolution internal Justices. Justices, Court Supreme not reach 1980 does E 28well. statute does as 455(a); U.S.C. § (expressing opposition to extending the (expressing opposition that the Judicial Conference lacks express authority to apply the express authority to apply that the Judicial lacks Conference them. But just as Congress extended statutory ethics extended them. But just as Congress to requirements it could the Justices, to include the amend § 351(d)(1) to extend the Supreme Court. Conference’s authority note 398, video/?299037-1/supreme-court-2012-budget&start=1687# (partial transcript on file with video/?299037-1/supreme-court-2012-budget&start=1687# author). relevant applied to theCanon § 455 have expressly Justices for more than forty years, even though 3C of the addresses a multitude of ethical issues While Justice that go well beyond disqualification. resolution to comply with the Kennedy’s response referred to an internal Court Court has later explained that “the several months issued Chief Justice’s 2011 annual report as itshad no reason to adopt the Code of Conduct definitive source of ethical guidance” because Justices consult other sources as well. Chief Justice’s only to reference an “internal resolution” cited a 1991 Court resolution to as gifts and outside income] a matter of [on “follow the Judicial Conference regulations internal practice.” since 1978. applied to the Justices on gifts have expressly disclosures and restrictions note 441, 40357-aap_18-2 Sheet No. 90 Side B 06/11/2018 08:46:58 B 06/11/2018 90 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 91 Side A 06/11/2018 08:46:58 28 28 , 7 J. Canon To the ’ means a means ’ see also 464 463 provisions judge ‘ 467 Murphy, Blumenthal, Blumenthal, Murphy, Code ’s provisions for ’s provisions judge . . . .”); Code 28 U.S.C. § 331. § 331. U.S.C. 28 See See , or magistrate magistrate , or would not be onerous. would not , it is hard to imagine how that to imagine , it is hard which would require the Court to which would require the Court judge 468 Code note 461, at 5 (“[T]he rules are not burdensome.”). burdensome.”). rules are not (“[T]he 461, at 5 note Code 28 U.S.C. term § 351(d)(1) (“[T]he supra , ) 6/4/2018 3:17 PM 289 note 412, at 5, 11. 5, at note 412, (Apr. 5, 2017), https://www.murphy.senate.gov/newsroom/ https://www.murphy.senate.gov/newsroom/ 5, 2017), (Apr. See , bankruptcy , bankruptcy The only other mandatory The only other for guidance on ethical issues. for guidance on ELETE . art. III, § 1 (“The judges, both of the supreme and inferior courts, supreme and inferior both of the judges, . art. III, § 1 (“The D 75, 80–81 (2005). 75, 80–81 465 supra judge ISSENT Aside from the Aside from OT , D N Code ONST O 466 Recusals and the "Problem" of an Equally Divided Supreme Court Supreme Equally Divided of an "Problem" Recusals and the ROCESS 1(D U.S. C 28 U.S.C. § 455(a). 455(a). § U.S.C. 28 , district .&P ESEND Justices and the Code Justices and the If the Court fails to adopt such Congress could closea resolution, the loophole See 2011 Report R judge Some earlier legislative initiatives addressing judicial addressing earlier legislative initiatives Some Compliance with the Compliance RAC . See . .P 464. 465 463 466. 467. 468.Christopher S. Murphy, Ofc. of Sen. News Release, ISRESPECTFUL PP NTRIKIN simply by redefining the term “judge” for purposes of the statute governing the filing of the and for purposes simply by redefining the term “judge” or the Court itself toJudicial Conference the processing of complaints, and by designating U.S.C. § 620(b)(4) (directing FederalJudicial Center to provide staff, planning and § 620(b)(4) U.S.C. its committees).research support to Judicial Conference and But even if the Judicial “jurisdiction” explicit regulatory Conference lacks over the Supreme Court, nothing itself from complying that the federal prevents the Court with the norms of conduct endorsed. has body policymaking judiciary’s own shall hold their offices during good behaviour . . . .”). .”). . . . behaviour during good shall hold their offices press-releases/murphy-blumenthal-slaughter-introduce-supreme-court-ethics-bill-to-restore -public-confidence-in-the-nations-highest-court. & Lee Epstein, handle those complaints. circuit to Restore Public Confidence in the Ethics Bill Court Slaughter Introduce Supreme Court Nation’s Highest disqualification, which mirror the statutory requirements, all of all of the statutory requirements, which mirror disqualification, And the Chief Justice are aspirational. its other provisions already Justices as 2011 that individual reported as recently “consult” the Initiatives 2. Legislative was the them 2017. Among conduct were reintroduced in Act, Ethics Court Supreme D to self- authority constitutional inherent its exercises the Court by adopting the regulate challenge. to constitutional could be subject decision E of the Supreme well on the integrity it would reflect contrary, federal judiciary. that of the entire Court and to the Justices3C already applies its amended because Congress expressly the disqualification statute, which language into applies to them. and the appearance of to avoid impropriety require judges to ask of Justices who enjoy not too much impropriety—surely life tenure. A 40357-aap_18-2 Sheet No. 91 Side A 06/11/2018 08:46:58 A 06/11/2018 91 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 91 Side B 06/11/2018 08:46:58 , And , https:// , https:// ROCESS 469 introduced P Code of Code GOV GOV . . Supreme Court Supreme All Information as well as 473 ONGRESS ONGRESS see also All Information (Except All Information (Except , C , C RACTICE ANDRACTICE 470 P note 364, at 69 & n.185 (citing note 364, supra An Inspector General for the Federal An Inspector General PPELLATE A note 471. Similar legislation was note 471. Similar , Remus, . . . . . supra See, e.g. , with appropriate modifications. , with appropriate OURNAL OF OURNAL J proposing an Inspector General for the General for an Inspector proposing ) 6/4/2018 3:17 PM , M. Hartmus, Diane HE 471 ELETE 188, 188 (Mar.-Apr. 1998). The idea has been considered by been considered has The idea 1998). (Mar.-Apr. 188 188, D All Information Text) for S.835 (Except OT N See, e.g. See, O , https://www.congress.gov/bill/115th-congress/senate-bill/2195/all-info. , https://www.congress.gov/bill/115th-congress/senate-bill/2195/all-info. 1(D The idea has generated some support some The idea has generated UDICATURE J GOV . 472 ESEND 81 R or to subscribe to its own ethical rules. to its own or to subscribe Another was the Judicial Transparency and Ethics Ethics and Transparency was the Judicial Another Senator Grassley’s remarks when the legislation was introduced reflectedSenator Grassley’s remarks when the legislation his reasons [T]he current practice of self-regulation judges with respect of [T]he to ethics and the In fact, in inadequate. and time again proven time has of conduct judicial code for not one but articles of impeachment received the Senate the past seven years, two judges. Federal to maintain supposed to be free from Judges are supposed impartiality. They’re will help federal judiciary for the watchdog conflicts of interest. independent An its members comply ethics with the rules and promote credibility within the will not . Act only help ensure continued . . government. The judicial branch of will it reproach, beyond them and keep in our federal courts public confidence branch. judicial strengthen our 471. 1st Cong., 115th 2195, Act, S. Ethics Enhancement Judicial Transparency and 472. Ethics Act, Transparency and 469. As of Sess. (2017). 1st Cong., 115th S. 835, of 2017, Ethics Act Supreme Court 470. Similar proposals have been Sess. (2017). 1st Cong., 115th 568, H. Res. ONGRESS NTRIKIN H.R. 862, 112th Cong. (2001), which would have imposed a code of judicial conduct on of judicial conduct imposed a code have which would (2001), Cong. 112th H.R. 862, Court Justices). Supreme Senator Grassley first introduced Act]. Sess. (2017) [hereinafter Transparency and Ethics a in 2006. for the federal judiciary bill to create an Inspector General 2017 Act of Ethics Enhancement and Text) for S.2195—Judicial Transparency C Jan. 1, 2018, the Senate bill had ten co-sponsors, including several members of the Senate several members of the Senate co-sponsors, including Senate bill had ten the 2018, Jan. 1, Judiciary Committee. as early as 1995. as early as 1995. Courts, some in Congress have called on the Court either to adopt the the Court either have called on in Congress some Code 290T the of the canons incorporating of ethics a code adopt Act, Enhancement by the Chief who would be subject to removal Judicial Branch Justice. E for U.S. Judges Conduct Congress repeatedly ever since. ever since. Congress repeatedly for sponsoring the entities that receive bill. He observed that two federal less funding than Inspectors General (IG). He also expressedthe federal judiciary both have their own of oversight of Judicial Conference the effectiveness judicial conduct and concerns about misconduct-complaint processing: https://www.congress.gov/ 2017), 6, (Dec. S7892–93 Sess., Cong. Rec. 1st 115th Cong., Grassley). (statement of Sen. crec/2017/12/06/CREC-2017-12-06-pt1-PgS7892.pdf Ethics Act of 2017, H.R. 1960, 115th Cong., 1st Sess. (2017). Virtually identical to the Virtually 1st Sess. (2017). Cong., 115th 1960, H.R. Ethics Act of 2017, 2018. 1, co-sponsors by January eighty House bill had Senate bill, the 2017 of Ethics Act Court Text) for H.R. 1960—Supreme (Except www.congress.gov/bill/115th-congress/senate-bill/835/all-info?r=2; www.congress.gov/bill/115th-congress/house-bill/1960/all-info?r=1. introduced in Congress for years. 40357-aap_18-2 Sheet No. 91 Side B 06/11/2018 08:46:58 B 06/11/2018 91 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 92 Side A 06/11/2018 08:46:58 , 90 , 90 ABA supra supra ,5 . 407 381, . 439, L.J. Y EV . 243, 267–69 . 243, 267–69 EV (Dec. 18, 2017), , 97 K , 97 Warily Eyeing the OST .C.L.R 474 .P ISS .W.L.R 783, 794 (2010) (arguing 783, 794 (2010) (arguing AL ASH , 28 M ,W THICS 476 Inspection and Oversight in the and Oversight Inspection . 10, 10 (June 2006) (reporting (June . 10, 10 E , 35 C AW EGAL .L ED Should the Rooster Guard the Henhouse: the Rooster Guard the Henhouse: Should .J.L EO , 53 F Federal Appeals Judge Announces Immediate Immediate Appeals Judge Announces Federal Judicial Governance and Judicial Independence Governance Judicial Diane M. Hartmus, Hartmus, Diane M. , 23 G , 23 (Dec. 8, 2017), https://www.washingtonpost.com/world Prominent Appeals Court Judge Alex Kozinski Accused Accused Judge Alex Kozinski Appeals Court Prominent , the Model Code of Judicial Conduct, and the Judicial of Judicial Conduct, and the , the Model Code OST More women soon came forward, and the forward, soon came More women ) 6/4/2018 3:17 PM 291 .P -appeals-court-judge-alex-kozinski-accused-of-sexual-miscon . (explaining the benefits of an IG (2010) 316–25 310, L.J. 301, 475 see also HI ELETE note 472, (supporting concept but suggesting revisions at 219–20 ASH D W ISSENT , OT D N .U.C supra , Matt Zapotosky, O , Anthony J. Scirica, , Matt Zapotosky, OY . 779, 789–97 (2015) (reviewing IG proposals and explaining objections); and explaining objections); (reviewing IG proposals (2015) 779, 789–97 . 1(D 4 (May 19, 2006) (referring to Justice Ginsburg’s comment that the idea was that the idea comment to Justice Ginsburg’s (referring 2006) (May 19, 4 EV Revisiting Conduct Standards for Federal Judges Standards for Federal Conduct Revisiting , 41 L Putting the Mice in Charge of the Cheese: Why Federal Judges Cannot Always Cannot Judges Why Federal of the Cheese: Putting the Mice in Charge ESEND E. The Chief Justice’s 2018 New Year’s Resolution: New Year’s Justice’s 2018 E. The Chief See, e.g. See, e.g. L. R R Two days after the Inspector GeneralTwo days after the bill was re-introduced . e.g. See, EPORT 473. Hartmus, 476. 474 475. ISRESPECTFUL NTRIKIN to then-most-recent bill); Federal Courts: Creating an OfficeFederal Courts: Creating of Inspector General https://www.washingtonpost.com/world/national-security/federal-appeals-judge-announces https://www.washingtonpost.com/world/national-security/federal-appeals-judge-announces -immediate-retirement-amid-investigation-prompted-by-accusations-of-sexual-misconduct/ /national-security/prominent duct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html?utm_term=.4706576 duct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html?utm_term=.4706576 730f8. Misconduct Allegations Probe of Sexual Retirement Amid J. E-R Idea of an I.G.: Congressional Bills Would Create an Inspector for Federal Courts Inspector for an Create Congressional Bills Would I.G.: Idea of an “[w]idespread alarm [that] has gripped the federal judiciary” over IG proposals and and IG proposals judiciary” over federal has gripped the alarm [that] “[w]idespread reporting its opposition to similar initiatives in 1996); Tori Richards, Eric Robbins, In re Nottingham Eric Robbins, Act of 1980 Disability Conduct and note 473, at 301–02 & nn.5–8 (reporting former Justice O’Connor’s opposition); Lara A. Justice O’Connor’s (reporting former & nn.5–8 note 473, at 301–02 Bazelon, It About Do Can Congress and What Themselves to Police Be Trusted against IG proposal as impermissibly on judicial independence); Rotunda, intruding response a condemning had “elicited efforts to create IG that renewed 464 (2009) (noting from the judiciary”); Donald E. Campbell, Act Evaluating the Judicial Conduct and Disability of 1980 Ninth Circuit began an investigation. Judge Kozinski apologized an investigation. Judge Kozinski Ninth Circuit began retirement. immediate and announced his a similar proposal, criticizing(1999) (same). Professor Rotunda supported the handling of Rotunda, D. against a in the Ninth Circuit. Ronald a misconduct complaint federal judge for An Inspector General Solution: and a Judicial Ethics, Judicial Transparency, Judicial the Courts D of accounts published including controversy, considerable Justices. former Justices and some by opposition allegations of sexual improprieties reported in 2017, the media by Judge Kozinski. E in bolstering public confidence that judicial misconduct will be addressed). addressed). misconduct will be judicial that confidence in bolstering public “really scary,” and reporting ABA’s opposition). ABA’s reporting and “really scary,” (2009) (“[T]he proposed legislative proposed harmful than the disease.”);(2009) (“[T]he cure is more Bruce Moyer, Bills Rile Judiciary Inspector General N.Y.U. of Sexual Misconduct 40357-aap_18-2 Sheet No. 92 Side A 06/11/2018 08:46:58 A 06/11/2018 92 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 92 Side B 06/11/2018 08:46:58 SRAEL , CNN , CNN I ROCESS 11–12, S. P IMES OF , T Chief Justice Roberts RACTICE ANDRACTICE P , Joan Biskupic, , Joan Biskupic, PPELLATE A The Court can no longer ignore The Court can no See, e.g. See, 479 should be considered as part of the should be considered as part of Justice Antonin Scalia Dead at 79 Dead Scalia Antonin Justice 477 478 OURNAL OF OURNAL J 2017 Year-End Report on the Federal Judiciary on the Federal Judiciary Report Year-End 2017 ) 6/4/2018 3:17 PM HE note 455, at 957–58 (“[I]ncivility among judges is in many ways many among judges is in (“[I]ncivility at 957–58 note 455, ELETE D OT N supra supra O , Mark Sherman, , Mark F. Suggestions for Constructive Alternatives F. Suggestions for Constructive 1(D Ross, U.S. (Dec. 31, 2017), https://www.supremecourt.gov/publicinfo/year-end/2017 https://www.supremecourt.gov/publicinfo/year-end/2017 2017), (Dec. 31, U.S. ESEND See See, e.g. R Events in recent months have illuminated the depth of the of the the depth have illuminated recent months Events in of harassment in the sexual problem workplace, and events have made clear that the judicialin the past few weeks by immune. The judiciary will begin 2018 branch is not careful evaluation whether its standards of of undertaking a for investigating and correcting conduct and its procedures are behavior an exemplaryadequate to ensure inappropriate workplace for . . . and every every court employee. judge all quarters These concerns attention from warrant serious of the judicial branch. Justice Scalia’s reputation for vitriolic opinions still opinions for vitriolic Justice Scalia’s reputation Whether the working group’s study of judicial misconduct misconduct group’s study of judicial Whether the working The Chief Justice, no doubt anticipating renewed renewed anticipating doubt no Justice, Chief The OF THE . 478. 479. 477. Jr., John G. Roberts, T NTRIKIN Calls for Review of Procedures for Protecting Court Employees From Misconduct From Employees Court for Protecting of Procedures Calls for Review https://www.cnn.com/2017/12/20/politics/roberts-judicial-misconduct/ 2017), (Dec. 20, index.html. more troubling than is incivility in other branches of the legal profession or the government judicial temperament.”). hallmarks of of the because civility is one year-endreport.pdf. The working group was assembled by the director of the by the director of the was assembled group working The year-endreport.pdf. Courts. Administrative Office of the U.S. group’s work and its recommendations for addressing and group’s work and its recommendations judicial behavior. preventing inappropriate C resonates around the world. 2017 /12 /18 /6e38ada4-e3fd-11e7-a65d-1ac0fd7f097e _ story.html?utm_term = .a3b10c15ea will be broad enough include a review of the sort of intemperate of intemperate the sort of a review will be broad enough include Scalia used in his judicial and disrespectful language that Justice the Scalia approach—bullying writing remains to be seen. But effect on the Court invective and attack—and its and bombast, and the judicial system 292T of oversight about Judicial Conference concern Congressional report in his 2017 year-end issue the conduct, addressed judges’ group to of a working the formation announcing to Congress, “new challenge”: study this E (Feb. 14, 2016, 1:54 AM IST), https://www.timesofisrael.com/justice-antonin-scalia-dead IST), AM 1:54 14, 2016, (Feb. -at-79/ (referring to the “mocking Scalia who in 1993 criticized a decades-old test used by 56. 40357-aap_18-2 Sheet No. 92 Side B 06/11/2018 08:46:58 B 06/11/2018 92 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 93 Side A 06/11/2018 08:46:58 480 24, 2015), radicalism - . But what (Oct that directly that directly 482 cautious - IMES T . 481 Y . , N ginsburgs - Code of Conduct for U.S. for U.S. Code of Conduct justice / sunday / s Cautious Radicalism ’ opinion / Seventh Circuit Standards Circuit Standards Seventh 25 / note 480 (reporting that “Justice Ginsburg likes to say she “Justice Ginsburg likes to say she (reporting that 480 note 10 / ) 6/4/2018 3:17 PM 293 supra 2015 / ELETE D Justice Ginsburg ISSENT , OT D N O , Carmon, 1(D . And the Conference should also see that the same same also see that the . And the Conference should ESEND Irin Carmon See, e.g. , R . It has often been said that judges are teachers. It has often been said that judges The Conference is particularly well positioned to consider well The Conference is particularly And whatever becomes of the recently appointed working working appointed the recently of becomes And whatever www.nytimes.com g . // e , 480. cast in the Scalia mold. includes a Justice no longer This is so even if the Court 481. 331. § 28 U.S.C. 482. ISRESPECTFUL NTRIKIN https: standard. Appointment to the nation’s to the standard. Appointment Court demands highest serve as the office. Its members conduct worthy of the dignity of in for civil public discourse. They may disagree exemplars of the federal The reputation not demean. dissent, but they must own of their regulation judiciary depends on the Justices’ conduct. from and future lawyers learned have other judges, lawyers, served only Far too many Justice Scalia’s dissenting opinions? policies violatedthe court to decide whether laws or government the constitutionally Scalia rhetoric). quoting state,” and and required separation of church See the federal courts, the Conference has the statutory obligation to the Conference has the statutory the federal courts, . . . fairness in changes that will “promote recommend and the of litigation, just determination the administration, and delay.” expense of unjustifiable elimination of the the positive effect in civility If they have substantially improved apply to judges. should consider adding at the Seventh Circuit, the Conference the to of those provisions some least Judges Justices of the to the applies equally of civility expectation or wrong, sets the national Court, whose conduct, right Supreme D to approach his scorched-earth that perception public the rest of by the perhaps encouraged) was approved (and dissents fellow Justices counsel Justice should instead Every the Court. light. in a negative that cast the Court opinions against issuing undertake should Judicial Conference investigation, the group’s on the focusing on its impact judicial incivility, its own study of of law, of the federal courts, the profession public perception body for as a whole. As the policymaking and the legal system E .html (noting that Justice Scalia’s “fury on the bench” had by then “intensified,” and bench” had by then “intensified,” .html (noting that Justice Scalia’s “fury on the he dissents because down” his “tone he suggested that reporting that Justice Ginsburg had polemical”). “not so were if he effective” be “more would opinions’”). [her] to teach through “‘tr[ies] and that she is still a teacher” 40357-aap_18-2 Sheet No. 93 Side A 06/11/2018 08:46:58 A 06/11/2018 93 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 93 Side B 06/11/2018 08:46:58 ROCESS P Many Remarks by Remarks by 484 RACTICE ANDRACTICE P PPELLATE 483 A Rome, 542 P.2d 676 (Kan. 1975) (sanctioning 1975) (Kan. P.2d 676 542 Rome, ONCLUSION In re , Donald J. Trump, Pres. of the U.S., Trump, Pres. of the J. Donald , VI. C OURNAL OF OURNAL J (citing ) 6/4/2018 3:17 PM See, e.g. note 371, at 400 (observing that opinion-writing is within the HE ELETE D (Apr. 10, 2017), https://www.whitehouse.gov/briefings-statements/ (Apr. 10, 2017), OT supra supra N O OUSE H 1(D Thode, Thode, ABA Model Code HITE ESEND R Disrespectful language has no place in the work of the of the in the work has no place Disrespectful language In the current atmosphere of vituperative public discourse of vituperative public In the current atmosphere and bullying insult, the invective, not rely on Dissent need . See , W 483. his own rhetoric, was among the belligerence of for President Trump, known 484 NTRIKIN President Trump and Justice Gorsuch at Swearing-in of Justice Gorsuch to the Supreme Gorsuch to the Supreme of Justice at Swearing-in and Justice Gorsuch President Trump Court Justice Scalia’s admirers. Supreme Court Justices over the years have publicly expressed Court Justices over the years Supreme But Justice Scalia support for civility and professionalism. out dissents rife with never did. Instead, he kept turning might justifiably observers and invective. Some intemperance federal judiciary, especially the Supreme Court. especially the Supreme federal judiciary, 294T judicial in that incivility of Americans a generation to teach legacy levels. A regrettable highest at the is acceptable writing indeed. political celebrities, senior corporate officers, by and misconduct Congress will respected appellate judges, leaders, and even to address improper judicial initiatives debate continue to of judicial have proved means self-regulation conduct. Existing to steps take affirmative federal judiciary must insufficient. The judicial behavior—intemperance address all inappropriate included. These rhetorical common in the Scalia years. that were all too proportion and our sense of devices deaden our sense of not begin did public discourse of decline in civility decency. The today’s deadlock in partisan the with the last election cycle or dissents perhaps the first few disrespectful Scalia Congress. But for his increasingly vitriolic helped pave the way—not just decline in the the remarkable dissents later in life, but also for level of public discourse generally. E remarks-president-trump-justice-gorsuch-swearing-justice-gorsuch-supreme-court/ (calling remarks-president-trump-justice-gorsuch-swearing-justice-gorsuch-supreme-court/ a terrific person”). and judge Justice Scalia “a terrific reach of the livelihood)). defendant’s the mocking an opinion for issuing judge 40357-aap_18-2 Sheet No. 93 Side B 06/11/2018 08:46:58 B 06/11/2018 93 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 94 Side A 06/11/2018 08:46:58 , . 815, EV See, e.g. 485 L. R TAH , 2017 U who is near but does not take part in take part does not is near but who note 480. Other Justices perhaps made similar attempts,Justices perhaps made Other 480. but note ) 6/4/2018 3:17 PM 295 supra ELETE D ISSENT OT D N O Upstanders, Whistle-Blowers, and Rescuers and Upstanders, Whistle-Blowers, 1(D ESEND R The Scalia era is over, but his regrettable legacy remains remains legacy his regrettable but era is over, The Scalia 485. language the disrespectful Justice Scalia to moderate Justice Ginsburg encouraged ISRESPECTFUL NTRIKIN Martha Minow, no evidence suggests that the Court took action to curb Justice Scalia’s intemperance. Yet that the Court took action to curb Justice Scalia’s intemperance. no evidence suggests bullies get away with bullying because stand by and good people do nothing. in his opinions. Carmon, D as silent impact the negative to stem failure Court’s the regard and disrespect. incivility in Justice Scalia’s acquiescence to the It is up published opinions. in the Court’s for all time that judicial opinions for standard a embrace Court to Supreme and As every lawyer professionalism. and civility exemplifies true only for “I respectfully dissent” rings every judge knows, judicious, and civil reflect measured, dissents that disagreement of the majority. with the views E what is happening,” while an “upstander,” is just the opposite: someone who speaks out who speaks just the opposite: someone is “upstander,” while an what is happening,” against injustice, including those who “resist the temptations of silence and passivity” in injustice). the face of 815–16 (explaining that a “bystander” is a person “ is a person that a “bystander” 815–16 (explaining 40357-aap_18-2 Sheet No. 94 Side A 06/11/2018 08:46:58 A 06/11/2018 94 Side Sheet No. 40357-aap_18-2