Justice Scalia’s death has prompted even more discussion than usual about which Justice writes the best Supreme Court opinions. Justice Scalia was considered by many to be the best writer on the Court, praised for his use of apt and colorful metaphors to illuminate complex legal concepts. Students are often instructed to write like Chief Justice Roberts, who uses elegant, varied sentences and evocative factual descriptions to ground his legal positions. But Slate recently advanced a convincing argument that Justice Kagan is Justice Scalia’s intellectual heir in both creating legal prose and interpreting legal texts.
I hope Justice Kagan, like Justice Scalia, continues to interpret statutes in a way that honors both the internal logic of the text and the commonsense logic of how people communicate. I also hope she continues, like Justice Scalia, to draft opinions that incisively distill out the essence of complex points without oversimplying them. However, I hope Justice Kagan avoids what I would call Justice Scalia’s “audience problem.” Writing to make a splash and influence law students, Justice Scalia’s legal opinions often resulted in a deceptive accessibility that muddled his arguments and caused many to question his motives.
The judge for whom I clerked, Judge Ronald Gilman on the Sixth Circuit Court of Appeals, once articulated the fine line that good opinion writers must walk. In a majority opinion, Judge Gilman took issue with the dissent’s characterization of his reasoning as “irrelevant,” “puzzling,” “a sham,” and a “bait and switch scenario.” In a rare departure from his perfect moderation and diplomacy, Judge Gilman noted: “These words, in our humble opinion, turn far more heat than light on the issues before us.” Justice Scalia’s prose style shed a great deal of light on many issues, but often created so much heat that the light went out.
Justice Scalia’s best work came when he translated difficult legal concepts into clear, vivid analogies. Analogical reasoning is, after all, the way one legal precedent connects to another, promoting the rule of law. Analogizing legal concepts to common-sense occurrences can, in similar fashion, clarify points and evince patterns for both legal and lay audiences. As a law student, I remember being dumbstruck by the correctness of one of Justice Scalia’s arguments, in a dissent in a capital case, where my sensibilities would not have aligned with the Justice. The defendant in Kyles v. Whitley argued that the prosecution committed constitutional error by not turning over information that several of the eyewitnesses had seen the defendant sitting down, and thus could not identify the defendant by height and build, only by face. To which, Justice Scalia wrote:
“Facial features are the primary means by which human beings recognize one another. That is why police departments distribute ‘mug’ shots of wanted felons, rather than Ivy-League-type posture pictures; it is why bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer’s face?’ will be laughed out of the courtroom.”
Justice Scalia was a pleasure to read as a law student. However, because nonlawyers also read Supreme Court opinions, Justice Scalia’s plainspoken style often created a deceptive accessibility that hurt his claim that he was rendering results-neutral opinions based on an intellectually honest process. For example, take Justice Scalia’s dissent in Lawence v. Texas, a case where the majority held that substantive due process rights protect from prosecution those who engage in consensual, intimate sexual activity inside the home. Justice Scalia, a nonbeliever in substantive due process rights because they are unsupported by constitutional text, attempted to make the argument that the state of Texas should be permitted to criminalize the morality of sex acts without constitutional impediment. He stated:
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”
Justice Scalia’s point was fair: that perhaps the Court was overstepping its role in finding a constitutional right to invalidate the Texas anti-sodomy law. However, this sentiment appears to draw no distinction between bestiality and homosexuality. The patness with which Justice Scalia attempted to communicate a complex argument about the institutional competence of the Court and the prerogative of the legislature yielded deeply insulting and morally invalid prose that was easily misconstrued (or perhaps correctly construed) as bigotry. His larger, more intricate point was lost in the heat.
The Lawrence dissent is perhaps the most dramatic example of Justice Scalia’s audience problem. Justice Scalia’s one-liners were easily read (and easily misread) by everyone. Law school really does train students to think like lawyers. Students learn that procedural postures, issues of constitutional avoidance, and concerns with administrability of legal rules dictate analysis, often more so than views on immediate justice and fairness. Judges must engage with harmonizing precedent, canons of statutory constitution, and the logical implications of their rulings for the next case. All of this makes lawyers read Supreme Court opinions differently than nonlawyers; in fact, reading opinions differently is part of what lawyers are paid to do. Of course, the law should be accessible to all. I hope that the public thoroughly reads Supreme Courts opinions, especially before forming opinions about them. However, the often glib accessibility of Justice Scalia’s prose converts the judicial exercise into one that is deceptively simple, snide, and indecorous.
In the end, Justices shouldn’t be known for calling logic “pure applesauce,” or citing Dr. Seuss, as Justice Kagan did in a dissent joined by Justice Scalia. Instead, Justice Kagan has the potential to use her agility with syntax to highlight the strengths of her reasoning, without resorting to confusing gimmicks. The best writers can honor the role of the Court and the significance of the cases before them, while clarifying difficult concepts with sharp prose. As a law professor once told me, if you cannot sum up your thesis in one, easy-to-understand sentence, you don’t actually know what you’re saying. I believe this to be true: the ability to synthesize and state things pithily demonstrates and enhances comprehension. But not every use of a pithy phrase accomplishes this goal. Justice Scalia’s likening Justice Kennedy’s opinion in Obergefell to the musings of a “fortune cookie” is memorable, but not for the right reasons.