Law, Literature, and Justice Scalia
I wonder whether other law students experience what I've experienced this year. Progressive students entering law school tend to have a preconceived notion of Justice Scalia: a hateful, religious, pro-business, right-wing nut-job with horns and a pitchfork. But, as I described it to my friend Kevin (and he agrees),
Any thoughts on this observation? Is it accurate for others? Should it be accurate? [To those of you who shout a resounding "No": What world do you live in?] What effect does Scalia's adroitness with the pen (or, more likely, the word processor) have on the Court's legitimacy? He does, after all, employ his writing skills for evil (i.e. vigorously attacking other Justices' opinions) as well as for good.
The current liberal (and other conservative) Justices are, on the whole, abysmal writers, especially for such bright people. Any ideas why? Roberts may be the exception, but it's a bit early to tell.
7th Circuit Judge (and superb writer himself: "Where powerful moral intuitions or overwhelming public opinion point, notions of fairness, equality, liberty, justice, and so forth, being infinitely malleable, and conclusional rather than analytic, follow.") Richard Posner has a book on this subject: Law and Literature. I believe Holmes and Cardozo are his paradigms. Posner's book is on my summer reading list; stay tuned for feedback.
[r]eading Scalia's opinions for myself has changed the way I feel about him. I still disagree with him across the board, and I'm enormously distrustful of anyone who sees the world in terms as simple as he does, but when I see the words "Scalia, J., dissenting" on the page, my face lights up. Don't you wish Souter or Breyer or Ginsburg could write like he does?
I feel the same way about Oliver Wendell Holmes ("The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics"; "Eloquence may set fire to reason"; even "Three generations of imbeciles is enough.") and Robert Jackson, too ("Compulsory unification of opinion achieves only the unanimity of the graveyard"; "Authority here is to be controlled by public opinion, not public opinion by authority."): their prose goes a long way in winning me over to their jurisprudential outlooks.
Any thoughts on this observation? Is it accurate for others? Should it be accurate? [To those of you who shout a resounding "No": What world do you live in?] What effect does Scalia's adroitness with the pen (or, more likely, the word processor) have on the Court's legitimacy? He does, after all, employ his writing skills for evil (i.e. vigorously attacking other Justices' opinions) as well as for good.
The current liberal (and other conservative) Justices are, on the whole, abysmal writers, especially for such bright people. Any ideas why? Roberts may be the exception, but it's a bit early to tell.
7th Circuit Judge (and superb writer himself: "Where powerful moral intuitions or overwhelming public opinion point, notions of fairness, equality, liberty, justice, and so forth, being infinitely malleable, and conclusional rather than analytic, follow.") Richard Posner has a book on this subject: Law and Literature. I believe Holmes and Cardozo are his paradigms. Posner's book is on my summer reading list; stay tuned for feedback.
posted by Garrett at 12:16 AM
3 Comments:
G,
You and I come from a background of training that stood for, inter alia, the importance of clarity in communication. As we focused our attention on becoming more lucid with our ideas, we took for granted that we would worry about clarity only AFTER tending to the quality of our reasoning. As such, I share your tendency to praise Scalia’s writing skills, but worry about the other part: the quality of the reasoning.
But a perennial law school fallacy is at work here: the notion that clear reasoning is good reasoning. The notion has many corollaries and cousins—persuasive reasoning is good reasoning; the advocate with the most compelling summation wins the trial; the list goes on. For example, I recently served on a committee whose job it was to award a law review article with republication in a collection of the best articles in a subfield of law. The fallacy was everywhere. One article we awarded actually endorsed making slippery slope arguments, not because they’re plausible or accurate but because they hold persuasive power over voters. It’s the very thing lawyers take heat for every day: don’t worry about the conclusion—that’s a given—just persuade whoever is listening with whichever tropes get you to the goal. I think it’s kind of ugly.
Is that what Scalia does best? Are his conclusions defensible? Or is he just the wittiest of our Platonic Guardians of the Potomac? (I’m hoping you’ll be more likely to agree with me because of alliteration and allusions to philosophy, thus distracting you from my reasoning.)
I agree entirely. Law students seem especially susceptible to this fallacy when it comes to boring and/or complicated cases. They read ridiculously complex Supreme Court opinions by Souter or Stevens or Ginsburg and scratch their heads as if to say, "Yeah, I like that conclusion, but I don't really understand how you got there." Then they read Scalia in dissent and say, "Wow, I understand that argument." Understanding goes a long way to respecting and maybe even believing. In that respect, Scalia's clear prose does wonders for advancing conservative thought in law students' heads.
"Platonic Guardians of the Potomac": nice.
I think another reason the sophistry you describe is so ugly is because of its source. I have less trouble when I see a lawyer sort through different arguments in a keep-what-you-want-and-throw-away-the-rest method, mostly because I know s/he is doing it to pay her/his mortgage. But I expect (probably unrealistically) more of an effort of detachment from judges.
On a related note, Brennan is every bit as bad for our side, AND he's not a good writer. "Oh, the plain meaning of the statutory text leads to the left-wing result? Well, I am a textualist, you know." Clean up your act, Brennan.
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