The passing of Antonin Scalia took America by surprise and has lit up the political landscape. While Scalia’s legal opinions and perspectives were controversial, to say the least, his command of the written word, particularly the scathing dissent, will be an important part of his legacy.
You don’t have to agree with the late Justice Antonin Scalia or his opinions regarding Constitutional Originalism to appreciate his talent with the written word. Scalia’s opinions, especially his dissents, are full of sarcasm, wit, and reasoned arguments that have shaped the American legal scene for decades. Here are a few of his top comments:
Scalia’s dissent in King v Burwell is a perfect example of scathing sarcasm mixed with strong legal opinions:
“But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
Elsewhere in the dissent he demonstrated his unparalleled ability to create new words to insult those he disagreed with:
“The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.”
Opposing Marriage Equality
In response to the majority’s opinion in Obergefell v Hodges, that “‘the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” Scalia said:
“Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
Interpreting the Establishment Clause
A staunch Catholic, Scalia was often a voice for the religious majority. In considering a question of a public religious holiday display, he said:
“I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to require scrutiny more commonly associated with interior decorators than with the judiciary.”
Despite all of his literary sparring, he was still highly respected among his fellow Supreme Court Justices. Liberal favorite Ruth Bader Ginsberg had glowing praise for her friend and colleague. She recalled:
“We disagreed now and then. . . . But when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.”
Legal writers can learn a few things from Ginsberg and Scalia’s dialog. Legal writing does not need to be boring or flat. Even when you disagree with your opposition, their opinions can make yours stronger, but only if you give them serious consideration.
Lisa Schmidt is a writer for Legal Linguist. She provides outsourced legal writing to attorneys and law firms. If you need a researcher to help with a legal brief or memorandum, contact Legal Linguist today to schedule a meeting.