Academic journal article The William and Mary Bill of Rights Journal

Justice Scalia's Bottom-Up Approach to Shaping the Law

Academic journal article The William and Mary Bill of Rights Journal

Justice Scalia's Bottom-Up Approach to Shaping the Law

Article excerpt

INTRODUCTION.298

I. THE FUNCTIONS OF JUDICIAL OPINIONS.299

II. EMPLOYING RHETORIC TO PERSUADE.301

A. Metaphors.302

B. Colloquialisms.302

C. Humor.303

III. JUSTICE SCALIA'S APPROACH.304

A. Justice Scalia's Use of Metaphors.305

B. Justice Scalia's Use of Colloquialisms.307

C. Justice Scalia's Use of Humor.309

IV. CRITICISM OF THE COURT.309

V. WRITING FOR A DIFFERENT KIND OF AUDIENCE.312

A. Justice Scalia Was Ineffective in Persuading the Court.312

B. Justice Scalia Directed His Rhetoric at the General Public.313

VI. WRITING A LEGACY.315

A. Writing to Parade His Rhetorical Might?.315

B. Shaping the Law Through a Bottom-Up Approach.316

CONCLUSION.319

INTRODUCTION

One of the most prolific, acerbic, and famous Supreme Court Justices has recently passed away. Justice Antonin Scalia was known for his intellect and wit, as well as his ultra-conservative approach to legal issues before the Supreme Court. Although he was in the minority throughout much of his judicial career, Justice Scalia had a profound impact on the law. Indeed, Judge Richard Posner has described him as "the most influential justice of the last quarter-century."1 Further, upon Justice Scalia's passing, his Supreme Court colleagues-legal giants themselves-painted him as "a towering figure who will be remembered as one of the most important figures in the history of the Supreme Court and a scholar who deeply influenced our legal culture,"2 "a jurist of captivating brilliance and wit,"3 "a towering intellect; a legal giant,"4 "a legal titan,"5 and "one of the most transformational Supreme Court Justices of our nation."6 Justice Sotomayor remarked that "[h]e left an indelible mark on our history,"7 and Justice Kennedy stated that, "[i]n years to come any history of the Supreme Court will, and must, recount the wisdom, scholarship and technical brilliance that Justice Scalia brought to the [C]ourt."8 Chief Justice Roberts declared that Justice Scalia's passing is "a great loss to the [C]ourt and the country."9

Perhaps realizing that he would often be in the minority in Supreme Court decisionmaking, Justice Scalia took a unique approach to shaping the law. Instead of using his judicial opinions to try to persuade his Supreme Court colleagues of his positions, Justice Scalia seemed to try to shape the law from the bottom up. He employed rhetorical stratagems to reach a broader audience in his opinions. For example, in the recent Obamacare case of King v. Burwell,10 the dissenting Justice Scalia compared the majority's reasoning to "somersaults of statutory interpretation" that would "be cited by litigants endlessly, to the confusion of honest jurisprudence."11 Through this approach of using accessible language and imagery, Justice Scalia targeted average Americans to have an effect on the law, whether that be through legislation or political pressure on judges and other relevant decisionmakers.

This Article outlines Justice Scalia's unique approach to impacting the law. Part I describes the typical role and power of judicial decisions. It explains that most judges use their written opinions to carefully describe the legal bases for their decisions. part ii explains how rhetoric is employed in crafting persuasive judicial opinions and in particular describes the roles of metaphors, colloquialisms, and humor in persuading audiences. Part III studies Justice Scalia's use of these rhetorical stratagems in his opinions, and Part IV asserts that, unlike most Justices, Scalia layered his rhetoric with harsh criticisms of the Court and his colleagues. Although Justice Scalia's written opinions are lively and colorful, and although his opinions strategically employ rhetorical devices more effectively and in ways that his colleagues' opinions do not, Justice Scalia's opinions often deride other Supreme Court Justices-the very people that Justice Scalia had to persuade to create a majority decision on his issues. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.