Last week, when Antonin Scalia found himself on the losing end of Hamdan v. Rumsfeld—the case invalidating the Bush administration’s military commissions for Guantanamo detainees—the court’s self-styled littérateur did what he does best: He blew his stack. The court’s interpretation of legislative history, he wrote, only makes sense if it “indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes’ practice sessions on the beach) alone into a vast emptiness.”
Two days earlier, when Justice David Souter’s dissent in a death-penalty case, Kansas v. Marsh, rubbed Scalia the wrong way (the court upheld a law Souter called “morally absurd”), Scalia gave a similarly scalding performance. Souter’s opinion, he wrote in a concurrence, “has nothing substantial to support it” and makes a great fuss about the largely irrelevant question of wrongful conviction in the criminal justice system. “That is a truism,” Scalia snapped, “not a revelation.”
That scolding tone, those deliciously overwrought metaphors: It’s Catholic-school headmistress meets Vladimir Nabokov, and it’s the lively, unapologetically stylish Scalia that avid court-watchers know and love. But the opinions above stand out this term, not just for their colorful language and questionable etiquette. Such decisions are noteworthy because they have become increasingly rare. The 2005 term might well mark the demise of more than just Bush’s military commissions and mechanisms to enforce the exclusionary rule: It could also signal the decline of Antonin Scalia’s literary style.
Everyone agrees that Scalia is a witty jurist and a lively writer. Earlier this year, the New York Times crowned him the “funniest justice” on the court, finding him responsible for a whopping 77 “laughing episodes” during oral arguments of the 2004 term—19 times the number of episodes produced by Ruth Bader Ginsburg and infinitely more than those produced by Scalia’s ideological neighbor Clarence Thomas. Conservatives, meanwhile, can’t stop praising him for the brio he brings to the bench. Web sites like Cult of Scalia and Ninomania give fans the chance to wax sycophantic about the “greatest jurist of our time” and the “yummy” dissents he produces. 2004 also saw the release of a book, Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice—a fawning collection of opinions, compiled by Kevin A. Ring. “Scalia’s way with words,” writes a breathless Ring, “is what makes this book possible.”
Just what is this “way with words” that makes Scalia so distinctive? His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.
But there was a lot less of his trademark style this year. And there’s a very simple reason to expect to see less of Scalia’s verbal pyrotechnics in the future: Scalia’s angry wit depends on having someone to criticize, and criticism tends to travel by way of the dissent. That’s why Ring’s book has the title it does, instead of, say, Scalia Delivers or Scalia Convinces Everyone That He’s Right.
For 18 years, Scalia has been a frustrated conservative presence on a shifting but moderate bench, and it shows in his writing. Yes, he has certainly produced a few thrilling majority opinions, but Ring rightly notes that “nearly every opinion reveals Scalia’s strong disagreement with the reasoning, if not the conclusion, of a majority of the Court.”
As that court lurches rightward, though, Scalia’s contrarian spirit will begin to seem less, well, contrarian. Already, he has been dissenting less. Since Samuel Alito joined him on the bench (for a total of about 40 cases this term), Scalia has joined or written dissents just three times (with one partial dissent). During the last 40 cases of the 2004 term, by contrast, Scalia dissented 11 times, and twice in part.
Since the 2005 term began, Scalia has written more majority opinions than any other justice and has authored the third-fewest dissents—a stark contrast with past terms. The endlessly charming John Roberts has made no secret of his desire for a court that speaks with a unified voice, and as Walter Dellinger pointed out last week, he pulled off the astonishing mathematical trick of agreeing with every justice on the court more than Rehnquist had. Alito’s charms are less universal, but he agreed with Scalia 13 percent more than did Sandra Day O’Connor—a justice with her own special place in Nino’s hell. With the court less Balkanized, the vitriolic stylings of Scalia will seem increasingly out of place.
This is not to claim that Scalia won’t find a place for a clever turn of phrase or a purple metaphor in the future. His dissent in Hamdan and opinion in Marsh prove there is enough contested constitutional territory still available, and I have no doubt that Scalia’s love of language transcends ideological lines. (For years, he and Harry Blackmun—as intellectually distant as two justices could be—were the sole members of the Chancellor’s English Society, a playful group Scalia founded to promote proper English usage.) But it’s simply in the nature of dissents to spawn the kind of fuming creativity that Scalia most loves. When you dissent, not only do you have a nice big target at which to take aim—the majority—but, more important, you don’t need anyone else on the court to agree with you. “It is clearly true,” Georgetown law professor Peter Rubin told me, “that any justice is freer to write whatever he or she wants alone.” In short, it’s easy for Scalia to be a big, colorful jerk in dissents because he can be a big, colorful jerk all by his lonesome self.
And how. A quick tour of Scalia’s greatest hits in dissent is in order. There’s Morrison v.Olson, in which the court upheld the Independent Counsel Act. (Remember Kenneth Starr?) Scalia, writing on the short end of a 7-1 split, upbraided his colleagues for overlooking an obvious separation-of-powers problem. Some dangers come before the court “in sheep’s clothing,” he wrote. “But this wolf comes as a wolf.”* Then there’s PGA Tour, Inc., v. Martin, in which the court had to decide whether a rule requiring all golfers to “walk” the course violated the rights of a disabled golfer. In dissent, Scalia suggested that, “out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.” And few can forget Planned Parenthood v. Casey—the 1992 case upholding the core holding of Roe v. Wade—in which Scalia’s dissent achieved a level of frustrated fury usually reserved for undersea volcanoes and small dogs tied to parking meters. Chastising the majority opinion’s claim that it is “tempting” to limit the freedom of federal judges, he retorted that “no government official is ‘tempted’ to place restraints upon his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify.’ ”
It’s heady stuff—and that’s without even getting into Scalia’s jeremiads against the use of international law, “evolving standards of decency,” or the court’s embrace of the “homosexual agenda.” But in majority opinions, the name of the game is coalition-building, and while the Scalia who speaks in the first person plural is able to find room for a flash or two of wit, there’s just no comparison with his dissents. You can read Scalia’s majority opinions in Davis v. Washington or United States v. Gonzalez-Lopez, without cracking a smile, and—a line or two notwithstanding—Scalia’s majority opinion in Hudson v. Michigan (which allowed unconstitutionally acquired evidence to be used at trial) could have been written by pretty much anyone.
I don’t doubt that all this newfound relevance pleases Scalia. And he may well try to have his cake and eat it too by writing lots of blistering concurrences that take shots at anyone and everyone within rifle range. But that would be pointless. You might even say it would be a bit like Demosthenes on the beach, rattling off into a big, open nothingness.