Chemerinsky: Scalia's truculent style is a bad influence
Justice Antonin Scalia’s nasty barbs are a bad influence on law students, according to an op-ed by University of California at Irvine law dean Erwin Chemerinsky.
Writing in the Los Angeles Times, Chemerinsky says he has always taught students in debate and law that nastiness is a crutch for those who can’t win using reason or legal precedent. “But lately my students have been turning in legal briefs laced with derision and ad hominem barbs,” he writes. “For this trend, I largely blame Scalia. My students read his work, find it amusing and imitate his truculent style.”
Scalia has “long relied on ridicule,” Chemerinsky says, but his opinions this term were “especially nasty, sarcastic and personal.” He provides some examples, including these:
—In his dissent to the gay-marriage ruling Obergefell vs. Hodges, Scalia said that Justice Anthony M. Kennedy’s majority opinion was “as pretentious as its content is egotistic” and that its “showy profundities are often profoundly incoherent.”
—In a footnote in his Obergefell dissent, Scalia wrote: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
—Responding to a suggestion by Justice Stephen G. Breyer in Glossip v. Gross that the death penalty is unconstitutional, Scalia responded that Breyer’s opinion was “nonsense” and gobbledy-gook.” Breyer rejects not only the death penalty, Scalia wrote, he also “rejects Enlightenment.”
Chemerinsky urges conservatives and liberals alike not to dismiss dismiss Scalia’s behavior as just “Scalia being Scalia.”
“If legal professionals ignore Scalia’s meanness or—worse—pass around his insults at cocktail parties like Wildean witticisms, they’ll encourage a new generation of peevish, callous scoffers,” Chemerinsky says.
Hat tip to How Appealing.
