Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, March 10, 2011

The Integrity of Strongly Worded Opinions

Linda Greenhouse has this "opinionator" column about Justice Scalia's dissents, wondering what Justice Scalia could "think[] his bullying accomplishes" with dissenting opinions which use strong and sometimes highly critical language.  Greenhouse doesn't think that his dissents win over anybody on the current court and only alienate his peers.  In my view, she also engages in some regrettable amateur psychology, suggesting that on "his 75th birthday" "fear as well as anger [is] palpable" and the Justice is feeling frustrated because he realizes that he "has accomplished surprisingly little."  Philip Roth would approve.

In response, Orin Kerr writes that Justice Scalia knows exactly what he is doing: he is writing for future generations of "bored" law students reading opinions in casebooks -- and of course for the lawyers and judges of the future -- who may perhaps agree with him.

Both of these accounts of judicial opinion writing take an instrumental view of the practice: the worth of judicial opinions is their influence on others.  Language ought to be chosen which is most effective in converting the great unwashed to one's view -- whether the unwashed are one's unenlightened colleagues or future readers.  "Overheated" language does not (Greenhouse), or may (Kerr), persuade, and therefore it ought not/ought to be used.

I want to suggest a different way to understand the use of intense and even acerbic language.  Strongly worded opinions stake out depth of disagreement.  They indicate not only difference with respect to one case, or one issue, but more extensive, thicker, and perhaps unbridgeable divides.  They are, in this way, more honest, truer.  If they really do reflect profound differences, then they have more integrity than opinions which, for perceived (short or long term) strategic reasons, paper over or mask those differences for the sake of winning an extra vote here or there.  Strongly worded opinions are not necessarily intended to persuade anyone.  They are a mark for posterity -- that the Justice stood here, at this moment in history, and that the place where others stood was deeply, irremediably, wrong. 

People who have a responsibility for the shape and direction of the law often map out shrewdly how their views can win friends and influence people; that is certainly a part of this line of work.  But when they write without regard for those aims, even (especially) when using astringently heart-felt language, when their writing reflects the full scope of their real views, they are to be admired for performing another kind of crucial function -- they are acting with integrity in shooting the world straight.  

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DeGirolami, Marc | Permalink

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I can firmly be against something, in a passionate matter, and still not use the same "bullying" tone as Scalia. Other justices are quite passionate in their opinions. I take your point up to a point, but also think that Scalia's tone at some point comes off as kneejerk and shallow at times. If something is "deeply wrong," you can be passionately against it w/o going as far as Scalia does. Many in fact do so.

Posted by: Joe | Mar 10, 2011 10:01:13 AM

I was somewhat shocked when I read the quotes in the Times article and then skimmed Scalia's dissent. It is more than a strongly worded opinion. It's an attack on the majority:

----------
Today’s tale . . . is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. . . .

But today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned. . . .

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
----------

He is calling into question the integrity of the majority, not just strongly disagreeing with their conclusion. In his pugnacity, he reminds me a bit of Bill Donohue of the Catholic league, although Scalia does at least refrain from using the word "liar."

Posted by: David Nickol | Mar 10, 2011 10:14:57 AM

Ms. Greenhouse asks what does he think his "bullying" accomplishes? I imagine Justice Scalia does not view his opinions as "bullying" but rather truth-telling. His opinions generally seem refreshingly honest and forthright. Other opinions, or governmental announcements like the recent "don't defend DOMA decision" can seem like sophistry -- subtly deceiving -- in that they can seem to not tell the full truth, or they seem to not give the *real* reasons behind the decisions they announce. What does this topic have to do with a Catholic approach to law? Maybe the concept that "reason" and "truth" are highly valued, and if someone sees something he views as unreasoned, or not entirely truthful, he uses strong language to point that out.

Posted by: DFoley | Mar 10, 2011 10:21:06 AM

You can be "refreshingly honest and forthright" without in effect calling someone you disagree with morons. The dissent David references is a case in point. Ginsburg dissented too. She managed to do so w/o the bluster. She's a tough cookie too. But, she manages to be so without being a you know what about it.

I have strong opinions, but realize the issues are complex and that the other side can be wrong without being misguided fools. As to the DOMA announcement being "sophistry," I don't agree, but that is neither here or there. I could say the same thing that said in a sneering tone too.

Posted by: Joe | Mar 10, 2011 10:31:34 AM

Just to be clear: I am not suggesting that opinions which are expressed in hard or even strident language are the only ones written with integrity. I don't believe that. I think there are many judges who write with integrity but, because their views are moderate with respect to the ideological spectrum of the Court's current composition, are not moved to use hard language in expressing their views. Justice Breyer is an example. I don't always agree with Justice Breyer, but his (to me) careful concurrence in Van Orden v. Perry seems to reflect his own real views with full honesty. Hard language was not needed there because the disagreement was relatively narrow. Contrast that with some of Justice Stevens's language in opinions in which he, especially toward the end of his tenure, was in the minority. The language he used could be quite strong.

If a justice believes very deeply in the rightness of his or her views, and that justice is consistently outside the majority (the original posts were about dissents) I think it may reflect a certain honesty and it may be right (not always, not even usually, but sometimes, for cases, issues, or, especially, general approaches to decisionmaking about which a justice feels especially strongly, and feels that the majority view is especially wrong-headed) to use hard language to express that severe difference of opinion.

Posted by: Marc DeGirolami | Mar 10, 2011 10:41:58 AM

When Scalia says, "Today’s tale . . . is so transparently false that professing to believe it demeans this institution," how can it be interpreted except that he is accusing the majority (of six) not of being profoundly mistaken but of being duplicitous. They don't believe what they are saying, they "profess" to believe what they are saying, and they demean the court by professing to believe something they can't possibly believe. It is open to him to express amazement that anyone would believe "today's tale," to make it clear that *he* doesn't believe it, and even to say it damages the court. But in essence to say, "You don't really believe what you say and you're just trying to change the law to suit your purposes" is offensive.

Posted by: David Nickol | Mar 10, 2011 10:56:36 AM

I wonder how we factor into all this the fact that, at least judging by reports, the justices get along swimmingly on a personal level, Justice Scalia is close friends with Justice Ginsburg, etc. Does this mean that Justice Scalia's colleagues don't take his strong language as personally as observers think they should? And should that affect our evaluation of the propriety of his tone and accusations?

Posted by: rob vischer | Mar 10, 2011 11:04:01 AM

David, I don't think I agree. I don't find the passage any more offensive than when Justice Stevens offered the following in District of Columbia v. Heller:

"The Court today tries to denigrate the importance of
this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” . . . . That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge
that a prefatory clause may resolve an ambiguity in the text. Ante, at 4 Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s
approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow."

Justice Stevens here is essentially accusing the majority of acting like advocates rather than judges, and of abdicating their crucial function. I can agree that there is no overt statement of bad faith in this quote (it's just one that stuck in my mind...I know that Justice Stevens has used other very strong language in his more recent dissents) though there is definitely an implication of bad faith. But for all that, I just don't see it as offensive or in bad taste. In fact, I see great value in Justice Stevens telling it like he sees it.

Posted by: Marc DeGirolami | Mar 10, 2011 11:10:23 AM

Marc,

I am not a lawyer, nor is it often that I read Supreme Court opinions. So I'm just reacting as a "normal person." :P

Also, I am probably reading Scalia's words in the light of the way I perceive him from television interviews and tapes of his speeches. I would assume that his fellow justices don't take his opinions personally. But it seems to me they *are* in personal terms, and the fact that Linda Greenhouse—for whom I have great respect—characterizes them as she does carries a lot of weight with me.

Posted by: David Nickol | Mar 10, 2011 11:25:46 AM

I would just note that Steve Shiffrin the other day wrote" Chief Justice John Roberts is clever and brazen, but he lacks integrity. The military funeral case, Snyder v. Phelps, is a good example of opinion writing gone wrong." It seems to me to be similar in many respects to Scalia's rhetoric. Will the same people who criticized Steve also criticize Scalia?

Posted by: David Nickol | Mar 10, 2011 11:30:38 AM

The "Stevens did it too!" reply doesn't work for me since overall he doesn't do it in such a harsh way. Degree matters.

Posted by: Joe | Mar 10, 2011 11:56:04 AM

David, you write: "But in essence to say, 'You don't really believe what you say and you're just trying to change the law to suit your purposes" is offensive.'"

I guess that's offensive to you. It is not offensive to me if that's what Scalia really believes and if a fair argument can be made that that is what is happening. I like it when people pop the fake balloons that others float ... or pop the balloons they believe to be fake. Exposing hypocrisy and disingenuousness is a good thing, in my book. That applies whether Antonin Scalia or Rachel Maddow or Al Franken is doing the exposing, as they see fit. I seem to recall language from all three that others might call bullying or ridicule, but that to me did a good job of exposing hypocrisy and calling out disingenuousness, which are good things.

Posted by: DFoley | Mar 10, 2011 12:08:07 PM

No, David, I do not agree that it is similar.

I said that an opinion, particularly a dissent, that uses hard language could be read to be staking out a certain kind of absolute distance from the prevailing view. A judge who felt very strongly about the wrong-headedness of the majority's trajectory could, under certain circumstances, rightly use hard language to denote honestly and forthrightly that disagreement. That is, a judge like Justice Scalia who uses such language could be seen to demonstrate a certain kind of integrity in composing his dissents, provided that the hard language is used to emphasize the distance of his own views from that of the majority. That's not the only way that a decision may demonstrate integrity, but, in the right circumstances, I believe it to be one way.

Chief Justice Roberts does not use such language -- I don't think he has ever used such language in an opinion -- and certainly did not use it in his Snyder majority opinion. Steve's criticisms of the decision had nothing to do with the hardness of the language, but with what he perceived to be an avoidance of the deep conflicts of speech law in an effort to make the decision flow more naturally from existing law. That is an entirely different kind of criticism. As I said in that thread, I agree that at the very least, the decision was much harder and closer than the majority let on in its decision. But I think it's plausible to say that the decision did not lack integrity, even if it was not as thorough in its discussion of the issues as I (and I think Steve) would have wished.

Joe, I see. If it's indeed "degrees" that we're talking about, I suspect what's really driving the offensiveness meter isn't so much those degrees as our underlying policy agreements or disagreements with the views of the Justices themselves. And I suspect that may well be the case for Linda Greenhouse, who has never, to my knowledge, written op-ed pieces about the comparative degrees of the offensiveness of the language that the Justices use, but certainly has written pieces that criticize Justice Scalia in particular for the use of such language.

Posted by: Marc DeGirolami | Mar 10, 2011 12:12:41 PM

Scalia is especially passionate in this dissent because he is defending the decision he wrote from Crawford v. Washington, which held that cross-examination is required to admit prior testimonial statements of witnesses that have since become unavailable, which the majority in this case was curtailing. Read Crawford and you might understand his passion for the confrontation clause and the reason his intro is so heated.

Posted by: MikeD | Mar 10, 2011 4:27:08 PM

Come on Marc. Ruth Bader Ginsburg is a good friend of Scalia, but politely has said that at times she is disappointed that he goes over the top. It is not some sort of difference of policy. Neutrally speaking, Scalia can be particularly harsh and even bullying. Some like that sort of thing and call it "blunt speaking" or something, but they don't kid themselves to say that he is just like everyone else.

Stevens, by either side, does not have such a reputation, even if you can point out to some cases where he used harsh language. In fact, the overall sentiment is that he is a polite sort. This isn't just liberals talking. His critics might oppose his substantive views. But, calling him a bully wouldn't really work.

Greenhouse also didn't write articles about the relatively quiet nature of some justices vis-a-vis Thomas, so if we point out him never asking a question is notable, is it because we don't like his positions? No sale, since again, people who like and dislike the guy says that. As with Scalia's tone or Breyer's absent minded professor routine or Kennedy's Hamlet routine (or whatever), he takes it to the next level.

Posted by: Joe | Mar 10, 2011 7:15:19 PM

It seems rather simple to me. Scalia said, "Today’s tale . . . is so transparently false that professing to believe it demeans this institution." I think that is open to only one literal interpretation. Scalia is saying that what was before the court was obviously false. Consequently, the majority couldn't possibly believe it. They only "profess" to believe it, and their disingenuousness demeans the court. They are intentionally engaging in "judicial mischief." If he means that literally, he is personally attacking the majority and calling them liars.

Now, if it is understood by all that this is hyperbolic rhetoric, and Scalia doesn't literally mean it, then that is one thing. It's like saying, "You must be joking!" or, "I can believe you actually buy that story!" That's more of an emotional and rhetorical reaction than an argument. But it is another thing to say, and literally mean, "That's so transparently false that it's clear you are only pretending to believe it." That is accusing someone of lying. It is the kind of thing we don't seem to find all that objectionable in a political campaign, but in a Supreme Court opinion it seems to me inappropriate.

Posted by: David Nickol | Mar 11, 2011 9:56:02 AM

David, I think your take is sort of right and sort of wrong. Scalia is saying the majority opinion is disingenuousness and its disingenuousness demeans the court. He means that literally. He is, in effect, calling them liars.

Where I differ with you and believe you sort of wrong: calling someone a "liar" in this manner is *not* a "personal" attack. He is criticizing the work product, not the person. He is not saying "Ginsburg, you're a low down liar, and we're never going to the opera together again." He is saying "your work, here, is not true and you are dissembling and lying to bring about the judicial outcome you want; you're not being forthright in your reasoning." I think there's a difference in the two and he is doing the latter.

As an aside, I have no problem with the word "liar" and wish it were properly employed more often. Bill Clinton was a liar extraordinaire. Call a spade a spade. If we accept calling a someone a liar in a political campaign, I'd argue a judicial opinion is a vehicle where it is *more* important to have full-fledged truth and no shading, and if someone believes dissembling or lying is going on in a judicial opinion, there is nothing wrong with saying that, and saying that is *not* a personal attack, or not a "personal" attack worth worrying about.

Posted by: DFoley | Mar 11, 2011 10:22:48 AM

DFoley,

If I say, "What you are saying is not true," that is not a personal attack. I am attributing no evil motives. I am dealing with what is true and what is not true. If I say, "You are lying," or "You are professing to believe something that is transparently false," that is indeed a personal attack. To accuse someone of lying, or being a liar, is to accuse them of doing something intentionally wrong and morally objectionable. I don't think it has a place in civil discourse—unless, of course, you have rock-solid proof that the person is willfully and knowingly telling an untruth.

There is a new book out called Why Everyone (Else) Is a Hypocrite. I have not read it yet, but I have read a fair amount along similar lines. We all look at other people and when we see they disagree with us, we think they cannot possibly believe what they say. Liberals think that conservatives have ulterior motives for what they say and do, and conservatives feel the same way about liberals. But when each individual looks within himself, he sees no ulterior motives. Consequently, we all see our own motives as pure and our own viewpoints as unbiased, but we look upon those who disagree with us as self-deluded and hypocritical. Just because Scalia believes something is transparently false does not mean it *is* transparently false.

Posted by: David Nickol | Mar 11, 2011 11:42:20 AM

David, you are correct: just b/c Scalia says something is transparently false does not *mean* it is. And just because you say that Scalia's opinion language *is* a personal attack does not *mean* that it is. I don't view it as such. And just because you (or Linda Greenhouse) believe that his language does not have a place in civil discourse does not *mean* it does not. Sort of neat how that works.

Posted by: DFoley | Mar 11, 2011 2:04:50 PM

DFoley,

You said: "He is, in effect, calling them liars." Calling someone a liar is a personal attack, in my book, unless you can actually prove the person is lying. I can't believe anyone here (except perhaps you) will disagree with me. (Should we take a poll?)

Just because I say something does not mean it is true. But if I say something true, it *is* true. I think "calling someone a liar, without proof, has no place in civil discourse" is a true statement. By "civil discourse" I mean discourse carried out with civility, just in case there is any doubt about terms. Civility may even rule out calling a *proven* liar a liar.

Posted by: David Nickol | Mar 11, 2011 4:08:03 PM

I find this debate to be chump change. I had a tax law professor, who had been at the school for almost 50 years, who taught the class using hard core Socratic method from the Internal Revenue Code. Once when a female classmate was apparently blowing off a cold call, he asked her, "You want to be a lawyer, right? A: Yes. Ma'am, then I need you to start talking to me like a lawyer and stop talking to me like a child." Not my style at all, but as adults, we all learn to deal with difficult, abrasive people.

Ruth Bader Ginsberg and Steven Breyer are not two year old children. They aren't going to go cry in the corner because Scalia was a meanie. Get over it already. If you think Scalia is a bully, the best way to defeat him is to shoot back on the substance of the issue. Though I will note that while studying abortion in my ConLaw class, the casebook conveniently left out Scalia's dissent in the first Carhart case, in which he caustically compared the majority's decision to Korematsu. Perhaps expansiveness of the court's health exception might have rung too true for my professor to give equal time?

Posted by: Don Altobello | Mar 12, 2011 9:50:24 AM

Supreme Court opinions can be so transparently false that they demean the institution. Dred Scott, Plessy v. Ferguson, Bell, Korematsu and Roe are cases in point. You can't evaluate Scalia's "so transparently false" statement without engaging the merits of the case. I haven't read the case under discussion but but I would agree that the statement is offensive if the majority's opinion was not "so transparently false that professing to believe it demeans" the Supreme Court. On the other hand, if it was "so transparently false," then there is nothing wrong with the statement.

Posted by: Dan | Mar 12, 2011 11:33:44 AM

Don, on some level, you are right, but since Scalia is put out as a model justice by many, it is troubling all the same. It promotes a certain ugliness. And, it isn't just that they think he's a 'meanie.' It is that at some point, you don't really respect what they are saying. Ginsburg likes Scalia but at some point it seems to me that his style will not be taken seriously. And, if it is just laughed off, doesn't that ruin the positive it is supposed to have? One defense being made is that his tone is a way to underline the strength of his views. If it is laughed off, as I think it is on some level, that is lost. As to Scalia's dissent in Carhart, unless the casebook also left out Kennedy's dissent, you still had a pretty strong criticism.

Posted by: Joe | Mar 13, 2011 1:00:56 PM

I have heard Justice Scalia say that, at least in part, he writes his dissents to capture the attention and interest of a future generation of law students and lawyers.

Posted by: Currican6 | Mar 13, 2011 3:43:09 PM