Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.” He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell. It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point. The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence. What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.
If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially. Ridicule in defense of the rule of law is no vice.
My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions. Originalism has an extremely powerful rhetorical appeal. Most people regard the original meaning of the Constitution as the real Constitution. Therefore, when someone seeks to depart from that, they are at a disadvantage.
There are a variety of moves that nonoriginalists have used to deflect this attack. One is to bring up something of a red herring. They interpret originalism as reflecting merely the expected applications of the framers — the specific applications of the constitutional clauses that the framers expected to occur — and then argue that those expected applications are not the Constitution.
But obviously this deflection is insufficient. It does nothing to address the more plausible types of originalism, such as original public meaning, that go beyond the expected applications.