Justice Scalia and the Jurisprudence of Adjectives

Dana Milbank had a column in the Washington Post Wednesday noting the tone of Justice Scalia’s comments at oral argument in the case regarding Arizona’s immigration law: it’s a column that resonates with something one can’t help noticing about Scalia’s tone in his opinions and dissents.  Milbank writes that Scalia’s questions “verged on outright heckling,” were “caustic” and “derisiv[e]” in tone, and involved interrupting other justices more or less at will.  This style on the bench, Milbank notes, “is very much defining the public image of the Roberts Court.”

Meanwhile in the recent plea bargaining case of Lafler v. Cooper, one couldn’t help noticing that Justice Scalia referred to the majority’s analysis as “unheard-of and quite absurd,” suggested the majority had a “rosy” and “incoheren[t]” view of the realities of criminal law, and topped it off by asserting that his preferred resolution of the issue was “infinitely superior” to that advanced by the majority.

None of this means that Justice Scalia is incorrect as a legal matter.  But it’s notable because young lawyers are told, ad nauseum, that their arguments should be substantive rather than personal, legal rather than rhetorical, and, above all, should be respectful of the dignity of the court and the weighty matters that the court is adjudicating.  You do not win arguments, we are told, by picking the best adjectives to slander opposing counsel or deride their arguments.  You win (or you lose) on the substance, the legal merits, the bones of the matter.

And, to return to a point I noted the other day, God help the pro per litigant who would ever employ even the slightest hint of the pugnacious style that is Justice Scalia’s bread and butter.  Such an individual would be shouted down in an instant if he or she were not immediately held in contempt.  It’s only the people on the bench, the people with power, who are  at liberty to employ this highly personalized and hyperbolic mode of speech.

Justice Scalia is undoubtedly a talented legal mind.  But he also embraces a jurisprudence of adjectives, a jurisprudence of gratuitous attack.  It’s a style that, as Milbank notes, so dominates the tone of the United States Supreme Court that the more restrained members of the court, who are no less talented and are simply more polite in their manner of expression, are frequently drowned beneath the rhetoric.