What the public is familiar with are what Breyer called the “failed dissents” — the ones that didn’t persuade the majority and often act as a stinging retort.
Scalia is widely seen as the master of the genre; no other justice has had a collection of dissents compiled in a book. He has often spoken of the liberation of writing just for himself instead of accommodating at least four other justices to write the majority opinion.
His blistering critique of Justice Anthony M. Kennedy’s majority opinion in the same-sex marriage case that ended the term was typical.
The justice blasted the arrogance of the majority in overturning a key part of the 1996 DOMA law and dismissed what he called Kennedy’s vague reasoning for the decision as “legalistic argle-bargle.”
“Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the court at its word and distinguish away,” Scalia wrote.
But the new study — involving decisions made before Justices Sonia Sotomayor and Kagan joined the court — found that all justices ratchet it up a notch when writing dissents.
Two professors, Lance N. Long of Stetson University College of Law and William F. Christensen of Brigham Young University, studied the justices’ reactions to what the authors called “argumentative threat” and hypothesized that “when faced with an argument that a legal writer believes — or knows — she is likely to lose, the writer will tend to write in a style that uses more intensifiers.”
They searched through hundreds of court decisions for those intensifiers — words such as “clearly,” “absolutely” and “undoubtedly.” They found them more often in dissents than in majority opinions.
“The increased use of intensifiers and the use of long sentences and words could be a subconscious attempt at showing the ‘strength’ of the dissenter’s argument,” Long and Christensen wrote.
Not surprisingly, Scalia was the leader in their study, and they found conservatives more likely to use the words than liberals. This could indicate a cultural difference, they said, or simply reflect that liberals “have had — to their chagrin — more practice in writing measured dissents.”
The professors also applied a “Threat-Related Intensifier Rate Increase” — which they also called the “Jekyll-Hyde index” — to identify the justice who showed the greatest variance in the use of intensifiers when writing majority opinions as opposed to dissents.
It was Kennedy, the justice who has become used to being the deciding vote when the court is split. He used more strident language when dissenting, the professors found.
Said Christensen in an interview: “Perhaps he needs a little more experience at losing.”