Sardonic Scalia: Scathing Stings and Sharp Slights.

“No one has ever written quite like Nino, and no one ever will.” You do not have to look far to concur with Justice Kagan’s endorsement in her foreword to The Essential Scalia. Scalia’s prose is indeed powerful. Cleverly embedded in his erudite speeches and writings, however, are some acerbic jests and aphorisms. As we reconcile with a society imbued with ad hominem attacks, it is worthwhile to observe what good-humored disagreements look like.

  1. Ideas, not people — Interview for 60 Minutes with Leslie Stahl

In modern pop culture, Scalia’s lasting legacy remains his unlikely friendship with Ruth Bader Ginsburg. When prompted by Stahl, Scalia shared a piece of wisdom on how to befriend those you disagree sharply with: “I attack ideas [and] I don’t attack people.” He couldn’t quite help himself from adding — in true Scalia character— “And some very good people have some very bad ideas.” Scalia’s words left a piece of prudent advice for our divided nation: engage firmly with ideas but assume the best intentions with people.

2. A shot at Ruth — Remark at a Smithsonian Associates Event.

“What’s not to like? Except her views on the law, of course!” In typical Scalia manners, he launched a side quip on Ginsburg’s adoption of a Living Constitution.

3. This Wolf Comes as a Wolf — Morrison v. Olson.

Scalia hid no ammo even in the nascent beginnings of his career. Morrison concerned a separation of powers question — whether a special court could appoint an “independent counsel” for prosecuting executive-branch officials for violating federal laws.

Scalia shunned the court for depriving the President’s prerogative over executive functions (in this case, prosecution of crimes). In one of his most well-known metaphors, he wrote, “Frequently an issue of this sort [seperation of powers] will come before the Court clad, so to speak, in sheep’s clothing…But this wolf comes as a wolf.”

In the face of a majority opinion by Chief Justice Rehnquist, Scalia’s dissent came as a lone wolf indeed.

4. JV Congress — Mistretta v. United States

Mistretta sought to answer whether Congress held the prerogative to establish the U.S. Sentencing Commission and confer upon it the ability to create binding sentencing rules.

In classic Scalia acerbity, he described such actions as “the creation of a new Brand altogether, a sort of junior varsity Congress.”

That was not the only sting in his dissent. When extrapolating upon Congress’ future proclivity to delegate powers to commissions, he quipped, “How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, ‘no-win’ political issues as the withholding of life-support systems in federally funded hospitals…”

In one line, Scalia ambushed three issues: Congress’ willingness to devolve power, commissions’ ability to pronounce undemocratic rules, and the government’s obsession with credentials (even “irrelevant” ones).

5. The Lemon Ghoul — Lamb’s Chapel v. Center Moriches Union Free School District.

The Court’s ruling in Lemon v. Kurtzman established a three-pronged test to validate whether a law violates the Establishment Clause (Congress shall make no law respecting an establishment of religion). To pass the Lemon test, the law must have a secular purpose, have a principle effect that neither advances nor inhibits religion, and does not cause excessive entanglement between the church and state.

Scalia long lamented the Lemon test, and ascribed it an apt metaphor: “Like some ghoul in a late-night movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again…It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will…Such a docile and useful monster is worth keeping around, at least in a somnolent state.”

Perhaps the most incendiary remark one could hurl at a judge is calling them unprincipled. Scalia — in analogizing the Court’s invocation of Lemon as a recalling of a ghoul — threw a curved insult at the Court’s majority opinion.

Justices on the high bench are often portrayed as stoic. One can not think that when Scalia speaks. His words exude incandescent passion and fervid verve. Whether you agree or disagree (I fall under the latter) with most of Scalia’s views, we can all appreciate his willingness to have fun (even too much fun) while disagreeing.



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