Justice Antonin Scalia ended up on the losing side of two of the biggest cases from the Supreme Court’s just-concluded term: King vs. Burwell, the Affordable Care Act case, and Obergefell vs. Hodges, the same-sex-marriage case. But his dissenting opinions were probably quoted more often, and more extensively, than the majority opinions that laid down the law. Who, after all, could resist including Scalia’s use of “jiggery-pokery” in a story about King, or otherwise focusing on Scalia’s “zingers” at the expense of the substance of the cases? Hardly anyone, apparently. Google “jiggery-pokery,” and you’ll see what I mean.
There’s no denying that Scalia’s turns of phrase are, in Boston Globe columnist Dante Ramos’s words, “fun to read.” As I read through Scalia’s apoplectic dissenting opinion in Obergefell, I confess to smiling at the footnote in which he said he wouldn’t join an opinion that began the way Justice Anthony Kennedy’s majority ruling did without hiding his head in a bag. Guilty.
But why is a Scalia zinger entertaining? It’s entertaining because it shocks. It’s entertaining because you cannot quite believe that a Supreme Court justice would treat one of his colleagues with such profound disrespect. When you see it actually happen in black and white, it’s astonishing. It’s a bit like mud-wrestling: appalling, yet difficult to look away from.
Or maybe not mud-wrestling so much as the judicial equivalent of pornography. Like porn, Scalia’s zinger-laden opinions are titillating, but over time they coarsen the culture of which they are a part. Cultural critics lament the “pornification” of advertising, pop culture and other aspects of contemporary society. Legal observers should similarly lament the “Scaliafication” of judicial opinions — especially dissenting opinions, which have a long and honorable history at the Supreme Court.
Of course, dissenting justices have always sought to call attention to the errors supposedly committed by the majority with which they disagree. That, after all, is a dissenting opinion’s purpose. But they rarely used to do so in the intensely personal, unnecessarily antagonistic terms that Scalia favors.
In the past, dissents made for good reading not when their insults were especially clever but when they put forth a particularly compelling legal argument, such as Justice Oliver Wendell Holmes Jr.’s famous dissenting opinion in Abrams vs. United States, in which he introduced to U.S. jurisprudence the notion that the First Amendment requires a robust marketplace of ideas. Or, as another example, Scalia’s own brilliant, prescient and zinger-free dissent in Morrison vs. Olson, written less than two years into his Supreme Court tenure, in which he both set out a compelling separation-of-powers argument and also predicted, with uncanny accuracy, how a law authorizing the creation of an independent prosecutor could go wrong. Now, though, as we approach the 30th anniversary of Scalia’s joining the court, the unfortunate trend of justices following Scalia’s lead by questioning not only their colleagues’ legal reasoning but also their intelligence, legal abilities and commitment to basic democratic principles shows no sign of abating.
Like porn, zinger-laden Scalia dissents such as those in King and Obergefell are nasty and degrading. Moreover, Scalia’s zingers add nothing of substance to his opinions; they are there to entertain, not to explain or enlighten. We should not treat them as harmless, “fun to read” guilty pleasures but as a truly unfortunate development in the history of an institution that once served as a model for how to disagree about important issues in a civil manner — something from which not only the legal and political worlds but also society as a whole, would benefit. We would do ourselves a favor by giving Scalia’s clever, but pointless and ultimately harmful, zingers the attention they deserve: none.
David Kravitz served as a law clerk for then-Supreme Court Justice Sandra Day O’Connor from 1994 to 1995 and for then-U.S. Court of Appeals Judge Stephen Breyer from 1993 to 1994. He wrote this article for the Washington Post.