For years, there have been plenty of reasons to dislike Supreme Court Justice Antonin Scalia, including his reactionary politics, his ahistorical commitment to “originalism,” and his bellicosity in the highest court in the land – which has pretensions of being “above” politics. A law school dean, Erwin Chemerinsky of the University of California at Irvine, has now written that Scalia is most dangerous for his “tone” – that in fact, he’s become a bad influence on the field. From Tuesday’s Los Angeles Times op-ed, in which the dean describes urging his students to be fair, logical and persuasive:
But lately my students have been turning in legal briefs laced with derision and ad hominem barbs. For this trend, I largely blame Scalia. My students read his work, find it amusing and imitate his truculent style.
Scalia has long relied on ridicule. In past years he has dismissed his colleagues' decisions as "nothing short of ludicrous" and "beyond absurd," "entirely irrational" and not "pass[ing] the most gullible scrutiny." He has called them "preposterous" and "so unsupported in reason and so absurd in application [as] unlikely to survive."
And according to Chemerinsky, Scalia has gotten harsher this term, comparing – for instance – the majority opinion in a case about state laws for same-sex marriage to the message on a fortune cookie. Writes the dean: “If legal professionals ignore Scalia's meanness or — worse — pass around his insults at cocktail parties like Wildean witticisms, they'll encourage a new generation of peevish, callous scoffers.”
No doubt Chemerinsky is right here: He’s seeing the Scalia effect in law schools and perhaps in the larger legal discourse of testimony and law review article, and as the justice -- appointed by Ronald Reagan in 1986 – generates more dismissive bon mots, admiring young judges, lawyers, legal scholars and others will only amplify them.
But there’s one important element the good dean left out: The Scalia effect could only have happened with the broadcasting of his “scathing dissents” and other outbursts on Fox News -- The New Yorker’s Jeffrey Toobin has already called him “the Fox News justice.” Meanness has always been with us, and thanks to the web it’s now all around us. But the mainstreaming of meanness came largely from Fox News and right-wing radio of Rush Limbaugh and company.
There’s a chicken-and-egg question here. Scalia is surely turning on students and young lawyers raised in the blue glow of Roger Ailes’s channel. It’s hard not to imagine Scalia, if he’s having such a strong impact on the law school students, helping to create a whole new wave of angry Fox pundits. Forget Sean Hannity and Glenn Beck and Ann Coulter: Could Scalia become to right-wing TV what Bob Dylan was to ‘60s music, or David Letterman was to ‘80s comedy?
Of course, Scalia isn’t just a Fox News shouter: He’s a smart guy, and an opera buff who hangs out with Ruth Bader Ginsburg. In fact, the two are the subject of a short comic opera that recently made its debut at the Castleton Festival in Virginia. (In the words of the Washington Post’s Philip Kennicott, the work “celebrates the virtues of the court through an affectionate, comic look at the unofficial leaders of its conservative and liberal wings.”)
But somehow I doubt that Scalia’s rigor or his textualism — or his love of Richard Strauss — are going to catch on quite as well as his fondness for cheap personal attacks and insulting overstatement.
Will Scalia phrases like “jiggery pokery” or “pure applesauce” or “SCOTUScare” or “ask the nearest hippie” catch on over the airwaves of the fire-breathing right? If you hear them quoted reverently next week from the latest young commentator, don’t say we didn’t warn you.