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01/13/2018

George Taylor, Matthew Jockers & Fernando Nascimento: The Rhetoric of Justice Scalia
Michael Ramsey

George H. Taylor (University of Pittsburgh - School of Law), Matthew L. Jockers (Department of English, University of Nebraska) and Fernando Nascimento (Bowdoin College) have posted 'No Reasonable Person': The Rhetoric of Justice Scalia (Justice Scalia: Rhetoric and the Rule of Law (Francis J. Mootz, III & Brian Slocum eds., University of Chicago Press, 2018 forthcoming) on SSRN.  Here is the abstract:

Through an examination of Justice Scalia’s rhetoric in his Supreme Court opinions, we challenge his thesis that originalist textualism inherently restrains his judicial discretion. An analysis of his opinions indicates that he frequently uses rhetorical moves to assert that only one judicial interpretation is available, while in fact greater interpretive play is at work that he denies. Examination of his rhetoric evidences that he often is engaged not in the reduction but rather the enhancement of judicial discretion, his own.

In Part I, after a brief summary of Justice Scalia’s originalist textualism, we turn, also briefly, to representative evidence of the various kinds of rhetorical strategies he uses in his Supreme Court opinions to criticize opposing views and enhance the legitimacy of his own. We then choose as representative of this rhetoric his frequent criticism of other views as “absurd” and spend most of our analysis evaluating this usage. We offer what we perceive to be two distinct contributions. First, in Part II, we set the stage by examination of the implications of the rhetorical enhancement of judicial discretion in a famous case. We argue that key rhetorical passages in the concurrence in the Supreme Court case of Bush v. Gore exemplify the fallacious rhetorical accusation of opposing views as absurd and maintain that linguistic evidence and patterns of word use typical of Justice Scalia suggests that these passages reflect his rhetorical style rather than the concurrence’s formal author, Chief Justice William Rehnquist. We contend, then, that there is evidence to suggest that Justice Scalia may have contributed to key phrases and passages in the concurrence. Second, in Parts III and IV, we address more analytically the nature of Justice Scalia’s criticism of other views as “absurd.” In Part III, we contrast the definition of absurdity in the absurdity doctrine to the attributions by which Justice Scalia attributes absurdity to other interpretive stances. Under the absurdity doctrine, absurdity is defined as a result that “no reasonable person” could contemplate. While Justice Scalia is typically quite emphatic that the legislative determination in a statute is not absurd, conversely, he is regularly willing to conclude that an opposing interpretive perspective to his is absurd. In so doing, he seeks rhetorically to underscore his own interpretation as the sole legitimate interpretation of a contested statutory or constitutional passage. In Part IV, we move from a more conceptual evaluation to an empirical exemplification and examination of Justice Scalia’s critique in various cases of other interpretive approaches as absurd. We hence argue that Justice Scalia’s rhetoric highlights the interpretive consequences of a mode of analysis that claims to limit judicial discretion but instead employs a rhetoric that enhances its own interpretive choice. In Part V, we conclude with some general observations that Justice Scalia’s rhetoric owes more to his interpretive preference for a jurisprudence of rules, which results from his perspective as an interpreter rather as a requirement of a legal text, and that contested legal texts more often require interpretive judgment, which permits judicial discretion.