Scalia’s Sarcasm
[Question:] While your opinions are delectable to read, I’m wondering:
Do you ever regret their tone? Specifically, that your tone might have
cost you a majority?
[Justice Scalia:] No. It never cost me a majority. And you ought to be
reluctant to think that any justice of the Supreme Court would make a case
come out the other way just to spite Scalia. Nobody would do that. You’re
dealing with significant national issues. You’re dealing with real litigants—
no. My tone is sometimes sharp. But I think sharpness is sometimes needed
to demonstrate how much of a departure I believe the thing is. Especially in
my dissents. Who do you think I write my dissents for?[Question:] Law students.
[Justice Scalia:] Exactly. And they will read dissents that are breezy and
have some thrust to them. That’s who I write for.14
Dean Chemerinsky is skeptical about Justice Scalia’s approach. “No doubt,
[Justice Scalia’s sarcasm] makes his opinions among the most entertaining to read.
He has a great flair for language and does not mince words when he disagrees with
a position. But I think this sends exactly the wrong message to law students and
attorneys about what type of discourse is appropriate in a formal legal setting and
what is acceptable in speaking to one another.”15 And Dean Kathleen Sullivan
noted that some observers “have speculated that Justice Scalia’s blistering sarcasm”
aimed at the opinions of Justices O’Connor and Kennedy “may have driven them
toward the center.”16