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November|December 2003
Color Inside the Lines By Edward Blum and Roger Clegg
By Force of Will By Rosa Ehrenreich Brooks
Equal Effects By Anita Earls
Rhetorical Question By Michael Frost

Rhetorical Question

What would Aristotle make of Scalia?

By Michael Frost

JUSTICE ANTONIN SCALIA, THE MOST NOTORIOUS DISSENTER on the U.S. Supreme Court, refused to go quietly in the wake of last summer's highly charged Supreme Court decisions. In Lawrence v. Texas, which invalidated Texas's antisodomy law, and Grutter v. Bollinger, which affirmed the University of Michigan Law School's admissions policy, he penned bitter dissents. In the former case, rather than disseminating the opinion through his clerks, he took the unusual step of reading his opinion aloud in the courtroom.

Scalia's outspokenness attracted the attention of both liberal and conservative commentators. The Washington Post's David Broder, the dean of Beltway columnists, called Scalia's Grutter dissent "sarcastic, dismissive, polemical and smug." The "patronizing" and "insulting" tone of his remarks during oral arguments, Broder suggested, was just the latest evidence of Scalia's lack of proper judicial temperament. Maureen Dowd of The New York Times, never one to shy away from derisive rhetoric herself, chimed in that Scalia had finally been "blinded by his own bloviation."

Conservative pundits agreed that Scalia's rhetoric revealed something about his character. Rather than self-defeating exaggeration, however, they saw in his dissents the carefully controlled fury of a dedicated iconoclast. National Review's Ramesh Ponnuru contended that Scalia's "furious" opinions were designed to expose the "fraudulence" of his colleagues' misuse of "raw judicial power." For Ponnuru, "passionate rhetoric is [an] appropriate" way to "demystify the Court."

Scalia's dissents in Lawrence and Grutter are only the latest examples of the kind of rhetorical pyrotechnics that have long made him the center of controversy. In PGA Tour v. Martin, Scalia dissented from the court's decision allowing disabled golfer Casey Martin to use a golf cart during PGA tournaments. In his opinion, Scalia made every effort to emphasize his belief that the dispute between Martin and the PGA was not a question that should be settled in a court of law. "It has been rendered the solemn duty of the Supreme Court of the United States," he stated drolly,

laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

Scalia's combination of passion and sophistication has led many of his dissents to be discussed as much for their style as their substance.

JURISTS HAVE STRUGGLED TO BALANCE STYLE WITH SUBSTANCE for centuries, at least since Aristotle composed the Rhetoric in the 4th century B.C. In modern parlance, "rhetoric" is usually a pejorative term applied to language that seems pretentious, insincere, or intellectually vacuous, but Aristotle's study of rhetoric was a practical analysis of how to construct a successful argument. Aristotle considered all aspects of legal discourse, attempting to codify the rules for making a persuasive legal argument.

To what extent do contemporary judges follow the rules set down by Aristotle and his philosophical descendants, the Romans Cicero and Quintilian? What price, if any, do they pay when they deviate from them? A few years ago, I undertook a study of Scalia's rhetoric in the equal-protection case U.S. v. Virginia et al., in which the Supreme Court required the previously all-male Virginia Military Institute to admit qualified women applicants. I chose the VMI case because Scalia's lengthy dissent is a rhetorical tour de force replete with distinctively Scalian tactics and turns of phrase. Among other things, he claims the court "load[ed] the dice," played "Supreme Court peek-a-boo" with legal standards of review, engaged in "politics-smuggled-into-law" and "do-it-yourself factfinding," and rewrote the U.S. Constitution with "custom-built tests" and "ad-hocery." I also chose it because Scalia was the sole dissenter in the decision, meaning he was writing for himself alone, rebuking the ruling and reasoning of his liberal antagonists and conservative allies alike.

Aristotle and other classical rhetoricians divided legal rhetoric into several parts: invention (the discovery of the available arguments), arrangement (the organization of those arguments), and style (the presentation of the arguments). Style, the part that captivated them most, was in turn divided into three forms of persuasion: arguments based on logic (logos), on emotion (pathos), and on the advocate's character or credibility (ethos).

Scalia's VMI dissent targets two issues in the majority opinion: whether excluding women from VMI denies them the equal protection of the laws guaranteed by the Fourteenth Amendment, and, assuming it does, what the appropriate remedy should be. The logos, or logical grounds, of Scalia's arguments are familiar to court-watchers. For Scalia, the court's decision against VMI encroached on democratic processes by inscribing the "smug assurances" of the present age into the Constitution and failing to honor VMI's long-standing and successful male-only educational traditions. He charged the court with ignoring its own precedents in order to implement "its own favored social and economic dispositions nationwide" and contended that as a result of the court's decision, "single-sex public education is functionally dead." But this summary of the dissent's logic fails to capture its tone and spirit. Even a perfunctory reading of the VMI dissent reveals that Scalia is passionate about the case. His opening lines excoriate the Court for a multitude of errors:

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. . . . [I]t rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people.

An impassioned opening is a practice approved of by Aristotle and his followers, but Scalia's zeal is not limited to his opening salvos; rather, it pervades the entire opinion. Scalia persistently overstates his points, accusing the court of feeling free "to evaluate everything under the sun by applying one of three tests" and of varying its standard of review "whenever [it] feel[s] like it." Aristotle cautiously approved of hyperbole as a way of adding liveliness to an argument; he also noted, however, that "hyperboles are characteristic of youngsters; they betray vehemence. And so they are used, above all, by men in an angry passion."

Scalia's angry passion carries him from hyperbole to even more corrosive rhetorical strategies. Classical rhetoricians greatly admired irony because of its ability to engage an audience's interest. But, as Aristotle pointed out, irony frequently "implies contempt" for its target. To be most effective, the "jests of the ironical man [should be] at his own expense," not at the expense of others. Most of Scalia's irony quickly veers into sarcasm and is directed at others rather than at himself. The Court's VMI decision, he writes sarcastically, "makes evident that the parties to this case could have saved themselves a great deal of time, trouble, and expense by omitting a trial." Elsewhere in the dissent, Scalia sneers that his colleagues have acted on their "personal view of what would make a 'more perfect Union' ... (a criterion only slightly more restrictive than a 'more perfect world') ."

SARCASM OF THIS KIND LEAVES LITTLE DOUBT as to the passion of its author. The question that remains, however, is whether Scalia's vitriol positively or negatively affects his credibility, or ethos, the third element in the classical rhetorician's trinity. David Broder and Maureen Dowd would argue the negative; Ramesh Ponnuru the positive. Aristotle, I think, would say that Justice Scalia refuses to show loyalty (to the court), calmness (in making his points), good will (toward his opponents), and a seemly modesty, and instead demonstrates pride (in his own reasoning), intemperance (in his language), and abuse (of his colleagues). In other words, he'd see the VMI dissent as a classic example of the misuse of rhetoric.

Michael Frost is a professor of legal writing at Southwestern University School of Law. This article is adapted from "Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case," recently published in the Kentucky Law Journal.

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