STYLE OR SUBSTANCE: WHICH MADE SCALIA (IN)FAMOUS?

Scalia Funeral

Justice Antonin Scalia is one of the most cited Supreme Court justices of all time, former Scalia clerk Brian T. Fitzpatrick, now a professor at Vanderbilt Law School, Nashville, said Nov. 17.

But it’s hard to determine “what’s doing most of the work,” Fitzpatrick said. Is it the substance of Scalia’s writing, or his style that attract lawyers to his writings? Fitzpatrick was speaking at a Federalist Society panel dedicated to the late justice, who passed away unexpectedly in February.

Michigan Supreme Court Justice Joan Larsen, who is in the running to replace Scalia, seemed to think style had a lot to do with it.

Scalia’s opinions were “eloquent, often potent and thoroughly enjoyable to read,” Larsen, who is also a former Scalia clerk, said.

His prose was “masterful,” not just because he could “turn a good phrase,” but also because it was “accessible,” she said.

Scalia wasn’t afraid to use “words from the common lexicon,” Kannon Shanmugam, another former Scalia clerk who now heads Williams & Connolly LLP’s Supreme Court practice, said.

In fact, Scalia often used “lexicon surprises” like “pure applesauce” and “jiggery-pokery,” Toni M. Massaro, the Dean of University of Arizona James E. Rogers College of Law, Tuscon, Ariz., said.

 

Shanmugam acknowledged that some of Scalia’s opinions could be harsh.

He pointed to Scalia’s dissent in the court’s recent same-sex marriage ruling, Obergefell v. Hodges.

The majority “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” Scalia said.

He added that if he had joined the majority opinion, he would have hid his head “in a bag.”

But that kind of language was typically reserved for when the majority “substituted rhetoric for logic,” Shanmugam said.

Even then, Scalia attacked ideas, not people, Shanmugam said.

But Massaro didn’t agree.

Despite occasionally using “lyrical romanticism in service of procedural protections for criminal defendants,” Scalia sometimes did “stoop” to “person-based shaming” rather than “action-based shaming,” she said.

Scalia sarcastically remarked that the Supreme Court had upheld gay rights under the Constitution’s “homosexuality clause,” Massaro said.

Language like that showed Massaro that he wasn’t interested in arguing with those that didn’t agree with him—only those who did, she said.

Ultimately, that made Scalia’s arguments less persuasive, she said.