The Scalia Factor

Erwin Chemerinsky, in an editorial in the Los Angeles Times, raises an important point: Justice Antonin Scalia is setting a bad example for young lawyers (I'd extend this to young and old people in general) by frequently resorting to sarcasm and scorn when he should be developing an argument. We try to teach lawyers -- and young people, and politicians, and, well, everyone -- to be civil, reasonable, and professional in making a case for whatever view they are taking. Scalia all-too-often does not do that, turning instead to clever nastiness with no (or precious little) reasonable argumentation.

Much of Scalia's recent writing, especially in his barb-laden footnotes, suggest a man who thinks an "argument" is a loud exchange of unpleasantries rather than a rational attempt to develop a persuasive case for a position. Many of the young people I meet, especially in the classrooms of colleges and universities, think that is what arguing is all about. They learn this from many aspects of our culture, from the political hustings (where rational argumentation is almost totally foreign) to radio and television (where nasty shouting down of one's opponent -- or guest -- is de rigueur) to classrooms (where all are encouraged to give their "opinion" on issues, no matter how little they know about those issues or how little justification they can give for their views). It lurks in our common language, where people talk about what they "feel" rather than what they "think" ("I feel that Russia can't be trusted") -- probably because they haven't actually thought much about these matters and certainly have not engaged in any attempt to reason through an issue to a sound conclusion and have not been encouraged to do so. Scalia fits right in. To make it worse, he writes well, he's funny (often in a nasty sort of way), he comes up with memorable phrases (like his recent "jiggery-pokery"), he's entertaining, and as a result he's often in (because he seeks out) the limelight. He is the darling of the right, a favorite of talk radio, Fox News, and the Federalist Society; he's the one Supreme Court justice whose opinions and speeches always attract attention, not because they are cogently argued but because they are an amusing read.

One need not disagree with Scalia's views to see his influence as nefarious. While it may be hard to put much stock in his preposterous so-called "originalism," and while it's hard to miss the fact that he doesn't always follow his own theory (usually when it produces a conclusion that conflicts with his conservative values), that's not the point here. As Chemerinsky notes, Scalia too often writes like a man whose arguments and logic don't hold up -- and so he resorts to derision and cheap jokes his readers find "delightfully funny." For instance, "jiggery pokery" is both: it is an amusing sounding Britishism that means it's user is lying -- it's both cute and cutting at the same time; as used by Scalia in King v. Burwell, it was a catchy way to say the majority of his colleagues are nothing better than evil-intentioned liars.

Chemerinsky says that he has always taught his students (both high school debaters and law students) that nastiness is "a crutch for those who cannot win using reason or legal precedent." He finds Scalia's rhetorical behavior to be "childish, even vain; like a harshly negative book critic, he revels in his own turns of phrase. And his attitude . . . affects the profession as a whole." In fact, I would add, behind the haze created by his rhetoric and his reputation, I fear we find a man who's not up to the job of serious constitutional thinking. This is dangerous in a nation where the public square has become a place where blunt, unsupported assertions, no matter how outrageous or contrary to fact, are treated as equivalent (if not superior) to soundly reasoned argumentation. What we don't need is "a new generation of peevish, callous scoffers," for that way lies a further decline in citizenship and, ultimately, in the constitutional republic that is our shared national project. In Scalia we see a man who is making matters worse not just in the legal profession but in the nation as a whole.

[Please remember what I said in my last blog post: this blog is no longer officially connected with the Vermont Bar Association and does not represent the views of that organization or its staff or officers.]

Lex et Ratio No Longer Associated with the VBA

I have asked that this blog be disconnected from the Vermont Bar Association website. Lex et Ratio will no longer be the official VBA "ideas blog." It will, rather, be a blog of my own ideas, driven by my own interests, and reflecting only my own considered positions on the issues addressed.

This will offer greater freedom to write about a wider range of topics and to develop my own thinking on those subjects without casting an eye over my shoulder to make sure I'm not saying anything that could troublesome if taken as "official" VBA positions. While most of the time the issues I discuss and the conclusions I reach would not be -- and have not been -- contrary to VBA interests, there have been times in the past when I did not write, or carefully worded what I did write (by "toning it down," for instance, or by not pushing the argument as hard as it could be pushed), because of the link to the VBA. The tie between this blog and the VBA never led me to take positions with which I disagreed, but it did make me think very carefully about what and how I wrote, for I did not want to appear to be stating a "VBA view" when all I was really offering was my own take on a subject.

De-coupling from the VBA will permit me to address a host of issues and develop a number of arguments and positions that I would shy away from were I writing as a spokesperson for the organization. Now I can write without being worried that I will be criticized for taking a "political" stance at odds with the proper focus of a membership association. This is not a hypothetical worry, for I have received such criticism in the past and will be likely to tackle topics and take positions that will inspire such criticism in the future. The association does not need that kind of misunderstanding -- it is, after all, a membership association that seeks to appeal to all lawyers and persons interested in the law, not one that carves out a certain subset of that population and seeks to espouse their interests and viewpoints (like, for instance, the Vermont Association for Justice, which espouses the concerns of plaintiffs lawyers in the state). And I have come increasingly hesitant to write because I do not want to be perceived to be the spokesperson for the association when I am not.

Henceforth, the views expressed, and the arguments developed for them, in this blog should be taken as mine alone. They do not in any way reflect the views of the Vermont Bar Association. It's cleaner this way.