How Justice Scalia's Writing Style Affected American Jurisprudence
Reflections on the powerful and distinctive writing style of Justice Antonin Scalia.
Justice Antonin Scalia
Justice Antonin Scalia’s politics and jurisprudence weren’t to everyone’s liking, but there was general agreement that he was the Supreme Court’s finest writer during his tenure. Ask practicing lawyers, editors of the New Republic (not exactly Scalia’s target demographic), or even his liberal colleague, Justice Elena Kagan — who declared Scalia to be “indubitably [the Court’s] greatest writer.”
What were the secrets to Justice Scalia’s success as a writer, and what effect did his writing style have upon American law? At the Federalist Society’s 2016 National Lawyers Convention, held last week in Washington and dedicated to his life and legacy, a panel of experts tackled these topics:
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- Hon. Joan L. Larsen (moderator), Michigan Supreme Court
- Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt Law School
- Prof. Toni M. Massaro, Regents’ Professor, Milton O. Riepe Chair in Constitutional Law and Dean Emerita, University of Arizona James E. Rogers College of Law
- Mr. Kannon Shanmugam, Partner, Williams & Connolly LLP
- Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit
(This write-up is based on my contemporaneous notes, but feel free to check its accuracy against video of the discussion, which the Federalist Society has helpfully placed online.)
Justice Joan Larsen — a former law clerk to Justice Scalia, and a possible future SCOTUS justice herself — opened the discussion with warm words for her former boss. She said that what he taught her “about law, judging, and my native tongue cannot be captured here,” and she praised his prose as both masterful and accessible.
Supreme Court litigator Kannon Shanmugam — another ex-Scalia clerk, and getting buzz at the conference as a possible U.S. Solicitor General in a Trump Administration — echoed Justice Larsen’s compliments. He cited a comment that Justice Kagan made to him at Justice Scalia’s wake, when she told him that when writing her opinions, “she imagined Justice Scalia on her shoulder.” (“I guess a little Justice Scalia,” Shanmugam quipped.)
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“There may have been more lyrical writers in Supreme Court history, but no clearer ones,” Shanmugam said. He also disagreed with the view that Justice Scalia was all style and no (or negative) substance, saying that the justice “was one of the Court’s greatest writers because he was one of the greatest justices, not the other way around.”
Fans of Justice Scalia tend to focus on their favorite quotations or phrases, but one thing that made him a great writer was what he left out. Shanmugam recalled giving the justice a 14-page draft opinion. A day passed, then another, then a few more, and Shanmugam started getting nervous — was there some major problem with the opinion? Not really, except that it was too long; Justice Scalia spent a few days trimming the 14 pages down to ten. “He cared about concision,” Shanmugam said of Justice Scalia.
Professor Toni Massaro agreed, noting that key attributes of the justice’s writing included clarity and concision. And humor, she added — “he was funny, often really funny, while most lawyer and judge humor is unintentional.”
Who did Justice Scalia think of as his audience? Although he knew that certain lines would show up in every newspaper in the country — “pure applesauce” (King v. Burwell), “this wolf comes as a wolf” (Morrison v. Olson) — he didn’t write with the newspapers in mind, according to Shanmugam. Instead, the justice thought of his readers as an educated audience that knew something about law. (That audience certainly included law students; as Justice Scalia said on various occasions, he wrote his dissents with law school casebooks in mind.)
Justice Scalia is often thought of as a “conversational” writer, and it’s true that he “wrote for the ear,” urging writers to read their work aloud to see how it sounds. At the same time, Shanmugmam noted, Scalia criticized excessive informality in legal writing. Recall, for example, his disagreement in Making Your Case (affiliate link) with co-author Bryan Garner over the use of contractions. Garner supported using contractions to make text more conversational, but Justice Scalia rejected the practice. Shanmugam recalled Scalia’s slogan on this score, “Formality bespeaks dignity.”
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The justice’s critics would claim that he wasn’t always dignified, citing his famous (or perhaps infamous) takedowns of his colleagues. See, e.g., Webster v. Reproductive Health Services (saying that a claim by Justice O’Connor “cannot be taken seriously”); Obergefell v. Hodges (saying that if he joined an opinion like Justice Kennedy’s for the majority, he “would hide [his] head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie”).
Shanmugam argued that this pointed language reflected Justice Scalia’s passion for the law and how troubled he was by departures from what he viewed as proper legal argument: “If you go back to his harshest opinions, you’ll generally see a focus on ideas.” Judge Jeff Sutton agreed; during his own clerkship for the justice, he noticed that few things frustrated Scalia more than when his colleagues refused to engage with his ideas.
(But Justice Scalia wasn’t completely insensitive. While clerking for the justice, Professor Brian Fitzpatrick recalled including in a draft dissent a quip (possibly by Samuel Johnson) about the majority opinion being like a second marriage, reflecting the triumph of hope over experience. Justice Scalia removed this in editing, explaining to Fitzpatrick, “Too many of my colleagues are divorced.”)
What effect has Justice Scalia’s approach to writing had upon American jurisprudence? Professor Fitzpatrick identified several, including a huge uptick in dictionary citations and a big dip in citations to legislative history after 1986, the year Scalia joined the Court. Professor Fitzpatrick also noted the justice’s major influence over the lower courts, noting that his opinions are cited much more often than those of any of his colleagues.
Justice Scalia was famous as a writer for wanting the last word, but this time we’ll give the final word to Justice Elena Kagan: “The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names. I think that is really not the case with Justice Scalia, who I think is going to go down as one of the most important, most historic figures on the Court.”
How Justice Scalia’s Writing Style Affected American Jurisprudence [Federalist Society via YouTube]
2016 National Lawyers Convention [Federalist Society]
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
