Justice Scalia & the Coarsening of American Culture

by Adam Winkler

Supreme Court Justice Antonin Scalia has been making more frequent forays into the public spotlight recently. In a recent televised interview on Stanley Pottinger's "Beyond Politics," Scalia was asked what would be the one thing he would change about America if he were King. His response was laughable, betraying a remarkable lack of self-awareness.

The one thing Scalia pointed to was "the coarsening" of American culture and discourse. While Scalia may be right about the underlying development in American culture -- even though the discourse from earlier eras, such as the pre-Civil War days, was also quite coarse -- what makes this complaint so funny is that it comes from the Supreme Court Justice who has made rude, mocking rebuttal of other Justices' arguments an art form.

Consider a few examples. In Lawrence v. Texas, the landmark decision invalidating bans on same-sex sexual intimacy, Scalia lambasted the majority decision -- authored by fellow Republican appointee Anthony Kennedy -- for its "manipulative" use of precedent, its reliance on "bald, unreasoned" distinctions, and for being a product of an elitist "law profession culture." As other observers have recognized, Scalia's Lawrence dissent is "characterized by acerbic potshots at the majority." Not satisfied with critiquing the Court's reasoning and offering his own constitutional interpretation, Scalia resorted to thinly-veiled name-calling and questioned the integrity of the other Justices.

In Grutter v. Bollinger, where the Court upheld the use of race-based affirmative action in law school admissions, Scalia's dissent insisted that the idea of achieving a "critical mass" of racial minorities -- which the majority accepted not only as a reasonable policy, but a compelling one -- "challenges even the most gullible mind." In Planned Parenthood v. Casey, Scalia wrote that "[i]t is not reasoned judgment that supports the Court's decision; only personal predilection."

The list goes on and on. In a telecommunications case, Scalia accused the Court's majority of "Mobius-strip reasoning." In a disability rights case, Scalia charged the Court with making "Alice-in-Wonderland" and "Animal-Farm" decisions. In a sex discrimination case, Scalia wrote that the majority was "illiberal" and "self-righteous." (It takes one to know one?).

Justice Scalia's coarse opinions have been recognized time and time again by legal commentators. Justice Scalia, it has been said, employs "jurisprudence by sarcasm," delights in "ridiculing" his fellow Justices with "personalized invective," and adopts a "condescending, mocking tone."

Nor should we forget the infamous hand-gesture given by Justice Scalia just a few months ago to a reporter to asked him about the effect of his religious views on his judging. Could there be a better example of the coarsening of our culture? If Justice Scalia wishes a more respectful society, he need look no further than his own behavior to begin reform.

Perhaps we should all be thankful for Scalia's intemperateness, which has had the salutary effect of marginalizing him on the Court. When first appointed to the High Court by President Ronald Reagan, many conservatives hoped that Scalia's intellectual stature would enable him to take a leadership role in promoting a conservative judicial philosophy -- something Chief Justice Warren Burger, who was not well respected by the other Justices, was unable to accomplish.
But if Scalia has not disappointed his conservative backers with his strident support of their ideological and political agenda, he has failed to live up to the promise of exerting much sway over the other Justices, even conservative ones (perhaps with the lone exception of Justice Clarence Thomas). Too quick to dismiss other's reasoning in sarcastic, mocking tones, Scalia has found himself unable to bring the other Justices around