In his obituary of Supreme Court Justice Antonin Scalia, Washington Post Supreme Court correspondent Robert Barnes quotes Erwin Chemerinsky, now dean of the University of California, as writing that “No justice in Supreme Court history has consistently written with the sarcasm of Justice Scalia.” So while Antonin Scalia, who was found dead Saturday, may be primarily remembered as one of the giants of conservative legal thought, he will also be known as someone who made sarcasm a linchpin of the highest court's opinions.
In an analysis last year, Richard Hasen, a law professor at the University of California at Irvine, wrote:
Justice Scalia is the most sarcastic justice on the Supreme Court. He has been for at least the last thirty years, and there is good reason to believe no other Justice in history has come close to his level of sarcasm. Now your first reaction to this claim, if you are a (sarcastic) Supreme Court aficionado or reader of the Green Bag (the two categories overlap almost perfectly), is probably: “Well, duh!” And your second reaction is likely: “Oh really? Well how can you prove that?”
Hasen looked at how often law journals referred to justices' writing as sarcastic and reviewed examples of sarcasm in 134 Supreme Court opinions from 1986 to 2013. Overall, Hasen found that Scalia authored 75 of the 134 sarcastic opinions. "His ability (and willing-ness) to engage in nastiness, particularly directed at other Justices’ opinions, is unparalleled," Hasen writes. The law professor says this isn't all bad. "Sarcasm makes his opinions punchy and interesting, clarifying where he stands in a case and why and gaining attention for his ideas. On the other hand, such heavy use of sarcasm can demean the Court."
In dissenting opinions, Justice Scalia describes the majority’s approaches as “nothing short of ludicrous” and “beyond the ab- surd,” “entirely irrational,” and not “pass[ing] the most gullible scrutiny.” He has declared that a majority opinion is “nothing short of preposterous” and “has no foundation in American constitutional law, and barely pretends to.” He talks about how “one must grieve for the Constitution” because of a majority’s approach. He calls the approaches taken in majority opinions “preposterous,” and “so unsupported in reason and so absurd in application [as] unlikely to survive.” He speaks of how a majority opinion “vandaliz[es] . . . our people’s traditions.” In a recent dissent, Justice Scalia declared:
'Today’s tale . . . is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively be- nign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however – or perhaps as an intended second goal – to- day’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.'
Hasen adds his own highlights:
Justice Scalia has remarked that “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.” In a civil rights case, he ended his dissent by stating that “The irony is that these individuals – predominantly unknown, unaffluent, unorganized – suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.” In a gender discrimination case, he wrote: “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display – a modest price, surely – is that most of the opinion is quite irrelevant to the case at hand.”