Massaro Questions Scalia's Rhetoric On Federalist Society Panel

Scalia's voice "will undermine his legacy," says professor

Supreme Court Brief
"At Federalist Society, Scholar Casts Scalia's Sharp Rhetoric in Negative Light" (Subscription required)
Nov. 22, 2016

University of Arizona Law Dean Emerita and Professor Toni Massaro was invited to speak about the legacy of the late U.S. Supreme Court Justice Antonin Scalia at the 2016 Federalist Society National Lawyers Convention Nov. 17. Massaro, a noted constitutional scholar, was joined on a panel, "How Justice Scalia's Writing Style Affected American Jurisprudence," by three of Scalia's former law clerks.

The Supreme Court Brief covered the panel and published an extended Q&A with Massaro. Read an edited excerpt below.

Supreme Court Brief: You praised Justice Scalia during your talk, but then you criticized some of his rhetoric. What are your concerns?

Massaro: Justice Scalia’s writing deserves ample praise for its transparency, lexical surprise, verve, wit and cohesion. Justice Scalia woke the reader up. His writing style commanded us to pay attention to his ideas and follow his path through complex legal doctrine. His legacy as a justice will be enhanced by this ability to state things so memorably, plainly and confidently. 

But there also were ways in which his forceful—often unqualified—voice will undermine his legacy.

Justice Scalia scored fellow justices for writing “mystical aphorisms one might find in a fortune cookie,” and called them “egotistical,” engaging in “faux judicial modesty,” and “straining to be memorable.” After Bush v. Gore, he told anguished citizens to just “get over it.” And after Romer v. Evans, he delivered a speech in which he said, “My court struck [the Colorado measure] down as unconstitutional under, I don’t know, the homosexuality clause of the Bill of Rights, or whatever that is.” Some praised Justice Scalia as “courageous” for being willing to say these things openly.  But for others this was unreal, coming from a sitting Supreme Court justice.

Blistering dissents of past eras come in two types: those vindicated by time, and those that underscore impulses of an era that the nation comes to believe are happily behind it. Some of Justice Scalia’s words likely will fall into the latter category. These words may be oft-quoted, but not in ways he may have hoped.

[Related: Supreme Court Justice Kagan Reflects on Justice Scalia during Arizona Law Visit]

What is the harm in using blunt rhetoric?

The exceptionally brutal and mocking tone he occasionally used against his ideological opponents was one that many other powerful figures have avoided. Abraham Lincoln’s nation-knitting style is an excellent example. We stir to his words over 150 years later and are buoyed by his unfailing humanity toward his enemies, even in the midst of that burning conflict.

So I admire Justice Scalia’s writing style. It was a shaft of light that made his ideas uncommonly clear and bold. But we also should be mindful of where his sentences ran out and why that matters. And we should recognize how fiery rhetoric can scorch more than it illuminates. That is a line worth drawing and respecting, even if not always easy to discern.

Read the full Q&A here (subscription required).

Opinions expressed by University of Arizona Law faculty do not represent the views of the college.