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Wednesday, June 23, 2010

Scalia, At It Again

Last week, the Supreme Court decided Stop the Beach Renourishment v. Florida, a case dealing with the question of whether judicial rulings that curtail property rights constitute a taking under the Constitution.  The Court split 4-4 on that question (while ruling 8-0, with Stevens recused, that no change in property rights was involved in this particular dispute).  As usual, Justice Scalia’s opinion was laced with acerbic comments about the arguments of the Justices who disagreed with him. What is so odd is that Justice Scalia is on record that the one thing he would like to change about America is what he called “the coarsening” of our public culture.  Seriously.

In a televised interview with Stanley Pottinger a few years agoScalia was asked to imagine he was King and to choose one thing in the country to reform.  At first, Scalia brushed aside the question but eventually he said that our culture was becoming “less decent, respectful.” That was the one problem—not reducing judicial activism, not drug addiction, not criminal violence—that Scalia said he worried about.

Surely Scalia was right that our culture has grown too coarse.  We attack people relentlessly and fail to see the value and merit in the perspectives of others.  But is there any Justice more inclined to argument by invective, to make disagreement an opportunity for name-calling and derision?

This time, Scalia’s attacks were aimed at Justices Breyer and Kennedy.  Breyer’s position, according to Scalia, was a “Queen-of-Hearts approach” was “reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?”  Scalia also took a shot at Kennedy’s opinion in Lawrence v. Texas, which we says, dripping with sarcasim and contempt, embodies “the wonderfully malleable concept” of due process which, Kennedy somewhat famously wrote, protects even the “liberty of the person both in its spatial and its more transcendent dimensions.” 

Pot, meet kettle.

Posted by Adam Winkler on June 23, 2010 at 12:08 AM | Permalink


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Attributing tone to a writing can be tricky, and frequently tells us more about the reader's priors than the speaker's.

This seems like a good example. "Wonderfully" certainly does seem to be an instance of sarcasm, but I wonder how we know that the phrase was "dripping with . . . contempt" or that the woodchuck question was "derisi[ve]" rather than incisive. Or is it just that we are supposed to assume that Justice Scalia is a contemptuous and derisive person, and that therefore his counterarguments in response to a dissent must have been written with contempt and derision? The approach seems circular.

Posted by: WPB | Jun 23, 2010 9:41:44 AM

You can click on my name and see how Nino might respond to being called out for the tone of his dissents.

Posted by: Eugene Pekar | Jun 23, 2010 10:15:52 AM

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