ABA Journal


U.S. Supreme Court

Scalia Tells of His Live-or-Die-For Cases and a Pet Peeve

Nov 20, 2012, 02:03 pm CST


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By Brindy on 2012 11 20, 2:56 pm CST

"It is required that your luggage is under the seat in front of you.” Scalia says “is” in the quote should be replaced by “be.”

Despite correcting the verb tense, Scalia's construct still coveys inadequate or incorrect information in too many words. A better form would be: "All carry-on items not placed in the overhead bins must be placed under the seat in front of you during takeoff and landing."

By BMF on 2012 11 20, 6:41 pm CST

My pet airline instruction peeve, and it is hardly a big one, concerns the droning explanation of how to fasten a seat belt. I find it hard to believe that there is anyone who is capable of understanding what is said (or displayed) who doesn't already know how to do this.

BMF - your economy with words makes you a credit to the profession. I often insist that I, at least, am always looking for ways to communicate better.

By Walt Fricke on 2012 11 21, 1:28 am CST

So a newbie to the Supreme Court said to Scalia, "Where's the library at?" Scalia said, "The Supreme Court's personnel do not end sentences with prepositions." The newbie said, "Oh. I'm sorry. Where's the library at, jerk?"

By Joe Gould on 2012 11 21, 11:40 am CST

The significance of Bill of rights cases is grasped when one construes the Constitution as supreme law over the government, and there to balancing the right of the individual citizen against the state, neither superior, fundamental right trumping majoritarian effort. Under our law, traditionally construed, the state is subordinate to the Constitution, something anathema to administrative state ethos stemming from European authoritarianism. Justice Scalia's lament would be soon relieved if the schools really taught common law jurisprudence, instead of relegating it to antiquity based on the interested writings of those who extolled somthing less.

By gdp on 2012 11 21, 11:52 am CST

I sympathize with Scalia's annoyance. The online world has allowed too many people to write on a regular basis. The exchange of incomplete thoughts and poor grammar reinforces bad habits and leads to a more slang-driven language.

By AB on 2012 11 21, 12:38 pm CST

what about "deplane"? we already have a word for getting off the airplane: "disembark".

By Dave on 2012 11 21, 1:55 pm CST

I don't know, Dave. Doesn't 'leave' work just as well?

By dbriefly on 2012 11 21, 2:20 pm CST

Garner's Modern American Usage has a lengthy (and amusing) entry on "airlinese." My favorite is "We'll be on the ground momentarily" to which I reply, "But this is my destination: I want to stay on the ground here." (Same Garner who is co-author of Scalia's recent book).

By Action This Day on 2012 11 21, 2:20 pm CST

If you sit in the exit row on a regional plane in our area, you will see a sign that reads:
"Please notify a flight attendant immediately if you are unable to read, speak or understand the English language.'
No kidding.

By David on 2012 11 21, 2:26 pm CST

Anyone who gets upset at such trivial things is clearly unqualified to be a SCJ. Scalia is Caligula.

By Charles Manzel on 2012 11 21, 2:32 pm CST

Dear BMF, thank you for illustrating the number one error committed by lawyers purporting to explain language. First, Scalia's purpose was to correct the verb tense in a single sentence, not re-write the entire litany of instructions. Second, understood in proper context (a feat insurmountable for many lawyers these days), the sentence is netiher inadequate nor incorrect. The sentence was uttered in the midst of a string of other instructions, which contained the information you mistakenly believe was omitted by Scalia. Finally, given the context in which the original sentence was uttered, your construct suffers the ailment of pleonasm and is undoubtedly redundant.

By Grammaticon on 2012 11 21, 2:33 pm CST

Dave, let's not quibble over the choice among many synonyms. There are more tha deplane, disembark, and leave. It could be alight, exit, debark, etc., etc.

By Grammaticon on 2012 11 21, 2:39 pm CST

Charles, so Supreme Court Justices are not supposed to be literate or concerned about the literacy of our nation? It was literacy that freed the modern world, and it will be the rising tide of illiteracy that condemns the people to serfdom once again. We should all be concerned about it.

By Can I get a what what on 2012 11 21, 2:45 pm CST

Perhaps Justice Scalia should pay more attention to the Bill of Rights which controls what government can and should or should not do and less on his own politically and personally oriented misinterpretation of the Constitution.

By Debbie on 2012 11 21, 2:55 pm CST

He seems to have a lot of time on his hands.

By BothSidesNow on 2012 11 21, 3:51 pm CST

@ # 4: Sorry, but name-calling aside, there is simply no excuse, ever, to end a sentence with "at." (Well, except for the sentence I just wrote!) "Where is the library?" or "What time is the meeting?" work just fine. Now, I will immediately concede that there are some sentences which just flow better with a preposition at the end -- like "Where are you from?" ("From whence doest thou cometh?" just doesn't cut it when trying to make chit chat, unless you're at a Renaisannce Faire) -- but "Where is X at?" is never one of them.

By Just Some Bloke on 2012 11 21, 3:57 pm CST

And yes, I realize that I just mistyped "Renaissance" -- an embarassing typo when lecturing on grammar. So when's that party at?

By Just Some Bloke on 2012 11 21, 4:00 pm CST

I thought strict textual construction or whatever Bork and his buddies are calling it these days is meant to ensure that laws are no more than words on paper?

By isolde on 2012 11 21, 4:20 pm CST

@ No. 3: My favorite announcement on that point is attributable to a Southwest flight attendant, who prefaced the mandatory announcement by saying: "For those of you who haven't been in a car since 1960, to fasten your seatbelt . . . ."

@ No. 7: Don't forget about the use of that word by Herve Villachaize on "Fantasy Island" as in "Look boss, deplane, deplane.

By HF on 2012 11 21, 5:45 pm CST

Subject, verb, object, please. Subject, verb, object. That is what I tell people when I teach grammer. It makes your sentences easily understandable.

For instance:

Scalia talked about verb tense. He is a Justice. The rest of the commentators are not Supreme Court Justices. But, apparently the Commentators are smarter than Justice Scalia. It must be an accident that he made it to this level (while and the rest of us are wailing away on a blog the day before Thanksgiving) when we should be goose hunting.

By Robert Paul Norman on 2012 11 21, 6:07 pm CST

Debbie @15: You are assuming Scalia's interpretation is wrong. It is possible that your interpretation is wrong.

By JME on 2012 11 21, 6:18 pm CST

I am pleased to report that I was able to hoist the good Justice Scalia by his own petard. I attended the Federalist Society speech of Justice Scalia's, and I heard his rant about the misuse of the "Mother Tongue" as he put it. He also eloquently defended the Constitutionality of the death penalty from an originalist's perpective, noting that at the time of the adoption of the 8th amendment, felonies were defined as those crimes punishable by death. Thus, a death penalty per se is not cruel and unusual under the 8th amendment. That does not mean, the Justice continued, that the means of implementing the punishment is necessarily consitutional, as an electric chair was not in existence at the time of the 8th amendment's adoption. But, he noted, the electric chair was likely not as cruel as hanging.

What transpired next is priceless, IMHO. The good Justice went on to say that in the old West, for example, horse thievery was punished by hanging. "The thieves were either hung or let go," said the Justice. I turned to the person next to me and said, "didn't he just make a classic grammatical mistake? -- it should be 'hanged' not 'hung'! A few sentences later, he repeated his mistake. So, not wanting to let the matter rest, I purchased the book the good Justice was hawking, and stood in line to have him sign it. As he was signing it, I said, "three words, Mr. Justice Scalia -- hanged not hung. He looked at me quizzically and then nodded and chuckled as I walked away. I will never be a US Supreme Court Justice, and I am not a grammarian, but I believe I effectively demonstrated a little comtempt for both his hubris AND his misuse of the Mother Tongue.

The lesson here: don't be exceedingly pedantic, unless you are also prepared to be called out for your natural, human imperfections that apparently even a U.S. Supreme Court Justice suffers from, just like the rest of us.

Chuck Meyer

By Chuck Meyer on 2012 11 21, 7:11 pm CST

Chuck Meyer @ 23: I believe that the correct expression is "hoist *with* his own petard."

By Jim on 2012 11 21, 7:26 pm CST

Chuck Meyer, get over yourself.

By DJF on 2012 11 21, 7:26 pm CST

It's refreshing to see someone in a powerful legal position emphasize correct grammar.

By StudentK on 2012 11 21, 7:53 pm CST

"Our evidence shows that hung for hanged is certainly not an error. Educated speakers and writers use it commonly and have for many years. . . . " Hanged is, however, more common than hung in writing. It is especially prevalent when an official execution is being described, but it is used in referring to other types of hanging as well. . . .

"The distinction between hanged and hung is not an especially useful one (although a few commentators claim otherwise). It is, however, a simple one and easy to remember. Therein lies its popularity. If you make a point of observing the distinction in your writing you will not thereby become a better writer, but you will spare yourself the annoyance of being corrected for having done something that is not wrong." (Merriam-Webster's Dictionary of English Usage, 1994)

By Blackyce on 2012 11 21, 8:57 pm CST

BMF, that's an improvement, but you're still using passive voice, the curse of legal writing. How about, "You must place your luggage completly under the seat in front of you."

By Matthew Cavanaugh on 2012 11 21, 11:29 pm CST

I can believe that Scalia would quibble with anyone claiming that "his purpose was to correct the verb tense." The subjunctive is a mood, not a tense. (I know, "be" looks like it's infinitive, but here it's not.)

So, what's the solution, with someone so hard to please?
He himself would brush it off with persuasive humor, more likely than not. (I know, his "persuasive humor" may stray or sting in multiple ways, but sometimes it's funny.) My response to Joe Gould #4 is that, instead of a blunt insult, Scalia would probably prefer the approach taken by Churchill, whose retort about dangling-preposition agita was:
"That is the sort of nonsense up with which I will not put."

By Avon on 2012 11 22, 2:05 am CST

I believe the phrase is "hoisted on one's own petard," not with or by.

A petard is a lance-like or sword-like weapon (and I'm writing this without Webster's or Google).

By A. Bentley on 2012 11 22, 4:16 am CST

A. Bentley, I acknowledge your dissent, but the weight of authority is on my side. A petard was a bomb, not a lance. You can use either by or with, but not on after hoisted. See this informal reference: by your own petard.html

By Chuck Meyer on 2012 11 22, 4:47 am CST

Blackyce @ 27 -- I don't think your citation presents the whole picture. If you had been fair, you would have quoted the next paragraph from the website where you apparently found the Merriam-Webster usage notes.. Here is a set of usage notes that holds a contrary view, and a link to the website where both are found:

•"Hanged," as a past tense and a past participle of hang, is used in the sense of “to put to death by hanging,” as in Frontier courts hanged many a prisoner after a summary trial. A majority of the Usage Panel objects to hung used in this sense. In all other senses of the word, hung is the preferred form as past tense and past participle, as in I hung my child's picture above my desk.
(The American Heritage Dictionary of the English Language, Fourth Edition, 2000)

Website link:

Justice Scalia includes a whole chapter on dictionaries in his new book. I wonder which of these would be more persuasive to the Court in the "hanged" v. "hung" debate. I suspect the good Justice would choose a dictionary published much earlier than either cited above. If I am correct, then "hanged" would win the day.

By Chuck Meyer on 2012 11 22, 12:16 pm CST

No. 7, "Deplane, deplane!" is what the little guy on Fantasy Island exclaimed when he saw the airplane about to land on the island.

And #21, I teach it as active voice vs. passive voice.

By Old Codger on 2012 11 23, 8:01 pm CST

He's wrong about common law, I use it a lot more than I use statutory construction in my business. Scalia may be forgetting that, just because he happens to be in a job that deals mostly with federal law (i.e., statutory, constitutional, procedural, and/or regulatory) doesn't mean the rest of the legal world is too.
To put it another way, it's just possible that Scalia is overly fond of theory and has lost touch with the real world.
And in other news, water is wet.

By The Crafty Trilobite on 2012 11 25, 9:20 am CST

Scalia is such a rigid right-wing personality that we are fortunate that the Chief Justice was not him. Alito, Thomas and Scalia belong in their own circle of Dante's Inferno.

By jeffrey gelb on 2012 11 26, 6:55 am CST


In a completely useless etymology lesson, petard comes from the French "péter" which means "To break wind", which in turn derives from the latin pedere.

By OKBankLaw on 2012 11 26, 4:20 pm CST

I agree with the Justice and would go a step further. Traditional law school class room teaching should be for no more than 3, or at most 4, semesters. Thereafter a year or year and a half of supervised intern or extern work, much like medical school would be more relevant, better train lawyers to be and reduce the high cost of school. The amount of debt upon graduation for too many kids is getting out of hand.

By Roger Levy on 2012 11 26, 5:41 pm CST

Then there is the flight attendant who concludes with "in the event of a water landing, the seat cushion can also be used as a flotation device and, as always here on [name of airline], the flotation device is yours to keep, with our compliments"

By Beaujangles on 2012 11 26, 11:39 pm CST

Chuck Meyer, I think you're absolutely right about "hoist with" or "hoist by," and in my opinion you don't have to be quoting Shakespeare (using "with") to use the word hoist nowadays (using "by").

But how come anyone thinks it's worth saying in a public speech that a thief is "hung" (#23)?
Are the Federalist Society so immune to chortling at a double-entendre (unintended though it may be) that anyone thinks it makes sense to risk the distraction of laughter distracting from a serious point?

Jeffrey Gelb #35, I remember well when it was Rehnquist, the new extremist on the Court, who was "such a rigid right-wing personality that we are fortunate that the Chief Justice was not him." And then it was him, and most of America choked a little. Let's not jinx the present situation! (I'm not feeling that nearly as urgently since the President got re-elected this month; but, still.)

By Avon on 2012 11 26, 11:50 pm CST

I am from the old school but I agree with him on the Common Law issue. In my practice over the past 30 years the interpretation of the law has been paramount. I disagree with him on grammer as many of the challengers have very little formal education and are in jail. It is up to the Court to understand what they are trying to say and put foward. Is the Court so "highfolutting" that it cannot understand the majority of the people?

By Augustin Ayala on 2012 11 27, 2:44 pm CST


That's one reason I usually say "the thief was strung up." No need to worry about verb tense in that sentence.

By OKBankLaw on 2012 11 27, 9:36 pm CST

Doesn't it have to be "was stringed up"? Or is that only tennis rackets - or cellos?

Seriously, "Strung up" sounds like an expression from a classic black-and-white Western movie.
But when I clicked my e-mail link to see this actual Comment page, I see that it's a genuine Western guy who wrote the Comment using the expression. Cool.
But casually tossing off "strung up" to mean "executed" wouldn't fly in NYC. Sounds casually cruel, with connotations of lynching, to the average New York ear. Hypersensitive? Bleeding-heart liberal? Not necessarily; almost 50% of our population (i.e. far more than Oklahoma) are of ethnic groups that have been infamously and innocently killed, either wantonly or viciously or genocidally.
Besides, those "passive voice" commenters might still get on their high horses about it.

(I was in Oklahoma once. To buy gasoline at 2am, on a hot July night in 1979. The only person I met was a kid manning the pumps who asked my sleepy carload if we like to get high. I assumed it was because of my long hair, though my personal answer was Never. But one of my hippie passengers was - barely - awake enough to pipe up, "Hey, sure!" He and the OK Kid paused, looking at each other, until each realized that the other was expecting to get a free high out of the encounter. I don't know whether the mutual reaction was more disgust, disappointment, or just plain resignation. Nobody got anything, except I got a fill-up - and a laugh.) (Maybe someday I should actually give Oklahoma a real visit?)

By Avon on 2012 11 27, 10:28 pm CST

How about ending a sentence with five prepositions, as in the case of the young girl who got tired of her father bringing the same book upstairs to her bedroom, and said, "Why did you bring that book that I don't want to be read to out of up for?"

By Bill on 2012 11 28, 11:22 pm CST

Bill, that's the perfect riposte to Churchill (#29). And it sounds exactly like the kind of thing I used to get from my own kids at bedtime.

By Avon on 2012 11 29, 12:32 am CST

That's a compliment, Avon, that I must respond to.

By Bill on 2012 11 29, 2:24 am CST

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