Scalia - in dissent, accomplishes little - Linda Greenhouse, NYTimes

"Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little." - Linda Greenhouse, Justice Scalia Objects


Times Supreme Court reporter emeritus (now housed at Yale) Linda Greenhouse considers the question asked a few days ago after Antonin Scalia in Michigan v. Bryant denounced the majority's opinion as "transparently false" and "utter nonsense".  Is Justice Scalia's vehement denunciation as of a recent majority opinion written by Justice Sotomayor evidence of a particular fury provoked by women who cross him....or just another example of his habitual hyperbole?   Greenhouse doesn't attempt to answer that question, but she does conclude that he has not been nearly so effective as his analytic and rhetorical powers might lead one to expect.


Update: Monroe Freedman today posted a comment on Legal Ethics Forum that demonstrates similar Scalian hyperbole:

Scalia recently criticized an Alito opinion as failing to “give a clue as to the rule of law it is applying,” and “mak[ing] no sense.” He further accused the opinion as “judicial incoherence” and “doctrinal obscurity” that “harms our image, if not our self-respect, because it makes no sense,” and said that the court should “abandon this Alfred Hitchock line of jurisprudence.” NASA v. Nelson.

Justice Scalia: Does he reserve his harshest rhetoric for his female colleagues?

In a post today on Legal Ethics Forum NYU legal ethicist Stephen Gillers asks if the intensity of Justice Antonin Scalia's recent rhetoric can be explained in part by hostility to women.  I tend to consider it just another example of the Tea Party bombast which is common to the the rhetoric of Justice Scalia and his frequent ally Clarence Thomas.  The language which Gillers cites is indeed extreme.  Speaking of Justice Sotomayor's opinion for the court in Michigan v. Bryant Justice Scalia wrote:

"Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeansthis institution.... In its vain attempt to make the incredible plausible ...today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort....

Gillers' suggestion that female targets are more likely to feel Scalia's wrath is a good topic for an aspiring law review author.   I offer no opinion on the question.  But I recall that Michael Frost, in his essay Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case,  91 Ky. L.J. 167 (2002), discusses the vehemence of Justice Scalia’s rhetoric in the VMI case in which Justice Ruth Ginsburg spoke for the Court.  There the majority compelled an end to VMI as an all-male institution. 
Antonin Scalia attended all-male Xavier High School in Manhattan - which was styled a military academy.  Boys attending that Jesuit school wore West Point-style tunics and hats.  It was a commuter school.  We, who met them on the field of athletic combat as fellow members of the Jesuit Athletic Conference, referred to them snidely as “subway commandos”.  Like Scalia, I highly regard my eight years of all-male Jesuit education.  But I feel none of the fury that Scalia unleashed over the end of public single-sex education.
Frost summarizes Scalia’s hot rhetoric in his essay, which finds the dissent ineffective due to its hyperbolic tone: 

"In the course of his dissent in United States v. Virginia, Justice Antonin Scalia criticizes the Court's opinion in language that makes his authorial voice the most distinctive on the U.S. Supreme Court. As he attacks the majority's decision to require, on equal protection grounds, the previously all-male Virginia Military Institute ("VMI") to admit qualified women, he accuses the majority of being "illiberal," "counter-majoritarian," and "self-righteous."  He asserts that the majority's equal protection jurisprudence is random, that the Court "load[s] the dice" or plays "Supreme Court peek-a-boo" with the standards of review it applies, that it engages in "politics-smuggled-into-law" and "do-it-yourself . . . factfinding," that it re-writes the U.S. Constitution with "custom-built 'tests,'"  and "ad-hocery," and that it employs "fanciful description[s]" of its own decisions."

A sixth Catholic on the Supreme Court?

Sonia Sotomayor was raised Catholic and went to parochial grammar school and the diocesan Cardinal Spellman H.S. in the Bronx. Does that make her the 6th Catholic on the Supreme Court?

Justice Antonin Scalia, who went to Xavier H.S. in Manhattan (when they still wore military tunics), attends a Latin mass every Sunday. He may not be impressed with Sotomayor's Christmas and Easter cultural Catholic presentation.

Manya Brachear - the Chicago Tribune religion reporter - discussed it on her blog with Notre Dame lawprof Cathleen Kaveny:

A sixth Catholic with views like Sotomayor’s also would put the American church’s diversity on display.“My guess is she’s very much operating in accordance with the commitments of the Catholic social justice tradition which is emphasizing … inclusion, solidarity, justice to those least among us,” Kaveny said. “It’s a strand of American Catholic teaching that is somewhat distinct from other Catholic teaching but not incompatible. People emphasize different aspects.” “‘Different gifts from the same spirit’ to quote St. Paul,” Kaveny added.

Antonin Scalia asserts that as a textualist his Catholicism does not affect his judgecraft. Maybe. But his conception of what his faith and tradition require seems to be worn on his sleeve - particularly in his harsh attack on the majority opinion in the VMI case which compelled an end to single-sex education at the Virginia state military university. See Michael Frost’s Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case, 91 Kentucky Law Journal 167 (2002)

Villanova law prof Robert Miller discussses and presents Scalia's 2007 Villanova address on the role of a Catholic judge at First Things blog.

For myself - Vatican II Catholicism affects my teaching and my lawyering: my adherence to the civil rights agenda, to John Courtney Murray's views on religious freedom, to the value of trade unions, opposition to the death penalty, and support of the peace movement agenda on nuclear arms.

New Federal Judicial Ethics Rules

New rules of ethics for federal judges go into effect on July 1, 2009.

The most interesting element may be the effort to define the much-lambasted phrase "appearance of impropriety".  The definition is:

“An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”

If that is the standard for recusal, I think that Justice Scalia should not have participated in the 2004 case involving then V.P. Cheney's claim of confidentiality of official consultations on energy policy, when the Justice and his daughter went duck-hunting, as guests of theVice President, flying on Air Force Two.  Gives new meaning to the term duck blind. The Sierra Club unsuccessfully moved to compel recusal.  The Times editorialised on the issue here.

The new rules can be found here