University of Chicago Press Justice Scalia – Rhetoric and the Rule of Law

Justice Antonin Scalia (1936-2016) was the single most important figure in the emergence of the "new originalist" interpretation of the US Constitution, which sought to anchor the court's interpretation of the Constitution to the ordinary meaning of the words at the time of drafting. For Scalia, the meaning of constitutional provisions and statutes was rigidly fixed by their original meanings with little concern for extratextual considerations. While some lauded his uncompromising principles, others argued that such a rigid view of the Constitution both denies and attempts to limit the discretion of judges in ways that damage and distort our system of law. In this edited collection, leading scholars from law, political science, philosophy, rhetoric, and linguistics look at the ways Scalia framed and stated his arguments. Focusing on rhetorical strategies rather than the logic or validity of Scalia's legal arguments, the contributors collectively reveal that Scalia enacted his rigidly conservative vision of the law through his rhetorical framing. About the Author Brian G. Slocum and Francis J. Mootz III are professors of law at the University of the Pacific, McGeorge School of Law in Sacramento, California. Excerpt. © Reprinted by permission. All rights reserved. Justice Scalia Rhetoric and the Rule of Law By Brian G. Slocum, Francis J. Mootz III The University of Chicago Press Copyright © 2019 The University of Chicago All rights reserved. ISBN: 978-0-226-60165-6 Contents Introduction Francis J. Mootz III and Brian G. Slocum, PART 1 The Rhetoric of Constitutional Adjudication, 1 Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent Mary Anne Case, 2 Justice Scalia's Philosophy of Interpretation: From Textualism to Deferentialism Scott Soames, 3 Power Victoria Nourse, PART 2 The Rhetoric of Statutory Textualism, 4 No Vehicles on Mars Brian G. Slocum, 5 The Two Justice Scalias Lawrence M. Solan, 6 Textualism without Formalism: Justice Scalia's Statutory Interpretation Legacy Abbe R. Gluck, 7 Party Like It's 1989: Justice Scalia's Rhetoric of Certainty Francis J. Mootz III, PART 3 Applied Rhetorical Theory, 8 God's Justice, Scalia's Rhetoric, and Interpretive Politics Steven Mailloux, 9 Rhetoric, Jurisprudence, and the Case of Justice Scalia; Or, Why Did Justice Scalia, of All Judges, Write Like That? Darien Shanske, 10 No Reasonable Person George H. Taylor, Matthew L. Jockers, and Fernando Nascimento, 11 Justice Scalia and Family Law Brian H. Bix, PART 4 Rhetorical Criticism of Heller, 12 Guns and Preludes Eugene Garver, 13 Of Guns and Grammar: Justice Scalia's Rhetoric Peter Brooks, PART 5 The Rhetoric of the Past, 14 A Separate, Abridged Edition of the First Amendment Colin Starger, 15 Rhetorical Constructions of Precedent: Justice Scalia's Free-Exercise Opinion Linda L. Berger, 16 Justice Scalia's Rhetoric of Overruling: Throwing Out the (Institutional) Baby with the Bathwater Clarke Rountree, Notes, Contributors, Index of Cases, Index of Subjects, CHAPTER 1 Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent Mary Anne Case The late U.S. Supreme Court Justice Antonin Scalia was infamous for the prose style of his dissenting opinions, frequently described with adjectives such as "vitriolic," "derisive," and, putting it mildly, "colorful." In a single, not unrepresentative, dissent — that in the Affordable Care Act (Obamacare) case of King v. Burwell — Scalia characterized the majority opinion, written by Chief Justice John Roberts, as "quite absurd," "with no semblance of shame," "feeble," full of "interpretive jiggery-pokery," and "pure applesauce." His description of opinions written by more liberal and more junior justices could be even more intemperate. In this essay, I want to focus on another, less frequently remarked upon quality of Scalia's dissents, which is their tendency to warn prophetically of the consequences that would follow from the lo