Rhetoric, Jurisprudence and the Case of Justice Scalia: Or, Why Did Justice Scalia, of All Judges, Write Like That?

As is well known, Justice Scalia advocated for a textual approach to the interpretation of statutes and the Constitution. One important ground for this approach, Scalia argued, was that it maintained the appropriately modest role for judges in a constitutional democracy. Given this defense for his approach to judging, one might have thought that Justice Scalia’s judicial rhetoric would be characterized as somberly legalistic, thus demonstrating that this is how a judge is to operate as a judge, namely as a textual engineer, carefully applying the various canons to the work of the democratically elected legislature. Needless to say, this would not be the way anyone would describe the rhetorical style most associated with Justice Scalia. To be fair, Scalia’s jurisprudence certainly did not logically entail a certain style. Furthermore, it is not the case that all of Justice Scalia’s opinions are characterized by the rhetorical pyrotechnics for which he is known. Nevertheless, I will demonstrate how exploring this tension between jurisprudence and style can be fruitful. I argue that the case of Justice Scalia’s rhetoric is suggestive – and only can be suggestive - of three broad jurisprudential conclusions, none of which would presumably have been particularly congenial to Justice Scalia. First, Scalia’s rhetorical style often underscores the need for courts to exercise judgment as to contested – and novel - matters of political philosophy. Thus in a broad way Scalia demonstrates the merit of Ronald Dworkin’s original critique of H.L.A. Hart’s picture of law in The Concept of Law. Second, Scalia’s rhetoric demonstrates the depth of disagreement that can be accommodated within the law. This demonstration also illustrates a contentious point by Ronald Dworkin, namely that law is a social practice that somehow can accommodate extraordinary diversity as to its fundamental premises. Finally, Scalia’s rhetoric illustrates a possible resolution of the tension between the rule of law and democracy. The tension is caused by the fact that the rule of law does not permit a democratic majority always to get its way. That Scalia the judge eschewed a more formal, hermetic style in favor of one far more outward facing is an indication that adherence to original public meaning is not enough. Perhaps self-government under law requires publicly contesting for the meaning/approach one thinks is right and that means arguing for textualism on non-textualist grounds (as Scalia does). This has the whiff of paradox, but this is actually the solution to the paradox of rule of law and democracy: The rule of law requires that the people living under the law recognize it as their own. Perhaps Justice Scalia’s rhetoric reached out to the public on controversial matters for just this reason. Put another way, Scalia’s outward facing rhetoric and arguments are perhaps an essential, if under-theorized, feature of his jurisprudence. Scalia himself famously observed that if a parent were to treat two siblings unfairly in regard to watching television then one “will feel the fury of the fundamental sense of justice unleashed.” He therefore urged a method of judging (textualism, rules etc.) that he believed most consonant with that fundamental sense of justice. I think it reasonable to suppose that Scalia also perceived, if more inchoately, that the fundamental sense of justice, at least of a self-governing people, also requires that the law not be an alien imposition. Thus, even as he argued that the rule of law demanded that we be ruled by the original public meaning of others, discovered by an obscure and controversial methodology, Scalia was also very concerned to persuade us that the law so discovered was, in fact, our own, and we would choose it for ourselves – if we could.