With Justice Scalia’s death yesterday, people who disagreed profoundly with his legal theories have been falling over themselves to praise his intellect. President Obama summed up the consensus in a televised statment, eulogizing Scalia as “a brilliant legal mind with an incisive wit … one of the towering legal figures of our time.”
This has been the standard take for a long time now, and plenty of good and smart people say it’s true of Scalia the private man. But it hasn’t been true of his judicial writing for quite a while.
I read a fair number of Supreme Court opinions every year, and I learn something from most of them — including, and perhaps particularly, when I disagree with the authors. Justice Roberts’ opinions, for instance, frequently challenge me. I often find myself mulling his arguments, going back and re-reading sections of them to better understand how they fit together. I don’t remember the last time I did that with Scalia.
Scalia’s dissents in particular are lauded for their invective and bravado, but in recent years those rhetorical tools were hardly ever put in the service of serious argument. He wasn’t trying to convince, and he wasn’t trying to educate. He was trying to entertain.
And the entertainment was pitched at the cheap seats. Scalia’s most famous dissents were catnip for people who never read Supreme Court opinions. They failed to engage productively with the work of his colleagues, and they demanded nothing of the reader. They were empty spectacle, and ultimately cynical — their message was “this is all show business anyway, so let’s have some fun with it.” And the jokes weren’t even all that funny.
As I said after reading one of his death penalty concurrences last term, Scalia was the guy in your Women’s Studies class who made a grand show of logically refuting his classmates … but who clearly hadn’t done the reading.
Clarence Thomas doesn’t get a lot of respect from casual observers of the Court; he’s often perceived as an intellectual lightweight and a hanger-on. But if you read his opinions, and even more so his dissents, you see a reckoning with law and history and theory that compells you to engage. With Scalia recently, it was mostly just the Scalia Show — preening, flouncing, histrionic, full of insults and strained witticisms. (The dissents Thomas and Scalia wrote in the Obergefell marriage equality case last year illustrate this gap.)
Such opinions did little credit to the Court, and it does no credit to the Court to pretend otherwise.