Stated otherwise, I’m pleased to say that today’s Washington Post features an op-ed I submitted. The overall argument is that Justice Scalia’s unfortunate habit of launching personal attacks against his colleagues is bad for the Supreme Court and for the country.
[W]hy 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….
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.
Please read the whole thing! Clicking the link will help the piece move up the “Most Read” list. 🙂
A model of dissent.
I liked your piece David. As well as being well written it was trenchant and necessary. And I say that as somebody who has a reputation here for, and has deliberately engaged in, some of the ‘nasty zingers’ of which Scalia has, you demonstrated, engaged in.
I’m not sure, however, you adequately lay out what you think you mean by ‘a civil manner’ or
the notion that previous generations were more civil than ours… And I mean to challenge you on this. It has been said that Abraham Lincoln had quite a nasty streak, especially when writing anonymously. It has also been said that, later in life, Lincoln came to regret much of what he wrote as a youth as he learned of the affect it had upon people and upon discourse. Going back even further, I recall that supporters of John Adams actually accused Thomas Jefferson of being the anti-christ. You can hardly get more un-civil than that…
Leaving aside, for the moment, Scalia let’s contrast, on the Democratic side, on the difference between a noted bully like Lyndon B Johnson and he whom many consider one of our greatest presidents, Franklin D Roosevelt. Where Johnson would pretty much straightforwardly ask, and pressure and, yes, bully, people into compliance… and he could be very nasty to people who worked with him, or for him, directly. Roosevelt, on the other hand, was much smoother: FDR was famously civil and was noted for leaving people with the impression that the he agreed with them only to turn around and do as he had already decided. Those not in alignment with FDR found themselves on the outs. Those, on the other hand, who happened to agree with what he told them were further courted and flattered with the notion that their advice had been the impetus which put FDR over the hill… when in fact nothing like that had happened as he had already decided what to do. He was civil. His civility allowed him to manipulate people and situations.
And I think that this is the problem with ‘civility’: it asks to cover up as much, if not more, than it can reveal. In my own youth, whenever my mother or grandmother made disparaging remarks about Jews I was, in the heat of my youthful response, advised to ‘keep a civil tongue’. This would often lead me to charge them with hypocrisy and thus a repeat of the admonition to be ‘civil’. I actually never found out how my grandfather, on my mothers side, felt about Jews. When questioned about it he merely said, “I prefer a quiet house and don’t really
want to stir the pot.” After a while, I just stopped trying to argue against their outlook on Jews and would limit myself to rolling my eyes. Similar contretemps occurred on the occasion my father or uncles would use racial epithets to describe any random black person who happened to wander into the orbit of their attention or regarding their rather blatant chauvinism. I have no idea what any of them thought about homosexuality as that was simply not discussed. At all. That, David, is an aspect of civility that asks us to protect each others feelings sometimes at the expense of the truth and, most damaging, IMHO, sometimes allows the one with hurt feelings to become the arbiter of the discussion.
But a critique of civility is not a defense of crude attacks or nasty sniping…. I do agree with, even to extending your condemnation to some of my own behavior, your analysis about needless sniping and nasty attacks. They really shouldn’t be done. (Yet, I’d be a hypocrite to say it’s easy to avoid going to far, sometimes, in the heat of an argument…) and I don’t, for a moment, wish to suggest we should eschew civility and adopt abusive behaviour… I don’t think that’s the answer at all. This I think allows the one with the sharpest tongue to become the arbiter of hte discussion and I think that’s no better, if not a lot worse, than even civility. So, if the choice is between civility and nastiness I agree with you and would choose civility.
A critique of civility, however, must mention what I like to call “Truman moments”: Harry S. was famous for replying to a cry to “Give ’em hell, Harry” with the quip, “I just tell the truth about them and they think it’s hell.” This is a profound bit of political philosophy — and interpersonal psychology: Sometimes, it has been said, the truth hurts and can hurt like hell. For example, a clear truth is that we live in a racist society. To some people that statement, almost literally, hurts like hell. Civility sometimes demands to either allay or to soothe that hurt… And that can lead people to conclude that since we’re not as drastically racist as 50 or 100 years ago, we must not be racist at all.
Now it’s certainly true that many, maybe even Harry S., found a certain delight in hurting people with the truth. I know I’ve tasted that delight… and that’s on me… but it’s also incumbent upon the recipient of the truth to at least consider it. That, after all, is what discourse is all about.
is name-calling. IMHO it has no place in the Supreme Court, or really, pretty much anywhere else in public life. I absolutely am in favor of stating policy or political disagreements forcefully. In fact, if you read Scalia’s dissent in Morrison v. Olson, which I cited approvingly in my op-ed, you’ll see that he states a very strong case. He just doesn’t call anyone names, and he doesn’t use gratuitous insults.
A nice job.
Both in argument and placement.
I think comparing Scalia’s zingers to porn is definitely going to get his attention.
Scalia should follow your advice (and not just on civility) but he won’t. I’d lay odds he’ll get even nastier in response, and isolate himself more from Justices with more moderate sensibilities.