The Justice as Writer By Andrew Ferguson

The literary critic Edmund Wilson was ambivalent about the legacy of Abraham Lincoln, but he didn’t doubt Lincoln’s genius as a writing man. “Alone among American Presidents,” Wilson wrote, “it is possible to imagine Lincoln, grown up in a different milieu, becoming a distinguished writer of a not merely political kind.”

We writers of a political kind won’t like that patronizing “merely,” apt though it is, but Wilson’s judgment is true and righteous altogether. The same point can be made about Antonin Scalia, alone among American public servants of recent memory. At his death (I wonder what he would make of the now-universal genteelism “passing” to avoid the plainer word?) even his detractors were happy to concede the largeness of his writerly gifts. Anyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.

Scalia’s writing could swing in an instant from steely argument to wild lampoon and then combine the two and never lose its ease and gracefulness. Such a style can only be the product of exertions unseen by the reader. It requires unblinking attention and pitiless self-corrections made on the fly. The rest of us got a hint of what was involved in 2003, when William Safire, the language columnist for the New York Times — yes, my little ones, there once was such a person — asked the justice to explain a turn of phrase from a recent opinion.

The Supreme Court had issued a sweeping decision, and Scalia had written a stinging dissent. He was always doing this, according to the popular press. For thirty years the Court swept, Scalia stung. When a Scalia dissent wasn’t “stinging,” reporters and headline writers insisted it was “blistering,” and if not “blistering” then “scathing.” My best sources (thanks, Nexis!) tell me that Scalia had been a justice for scarcely a single term before the Times declared one of his opinions “blistering.” It took another two years for him to work up to “stinging.” The violence only accelerated. In the last five years alone the Times has noted (if not read) five “scathing” dissents — a pace of one a year. The violence of his dissents was wildly overstated, of course. I don’t think journalists knew how else to approach them. Scalia could dismember an argument so quickly and thoroughly that a wide-eyed reporter, arriving late to the scene and finding the field littered with broken fallacies and red herrings, could only assume that violence had been done. We have delicate sensibilities.

In his “stinging dissent” from the sodomy case called Lawrence v. Texas, Safire noted that Scalia had erroneously neglected to use a possessive apostrophe after the word homosexuals in this sentence: “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” Among other things, the absence of the apostrophe allowed the Associated Press to shorten the sentence to make Scalia look condescending: “I have nothing against homosexuals.”

Scalia pled guilty to the grammatical offense, but said it was committed with benevolence aforethought.

“When I composed the passage in question,” Scalia wrote Safire, “I pondered for some time whether I should be perfectly grammatical and write ‘I have nothing against homosexuals’, or any other group’s, promoting their agenda,’ etc. The object of the preposition ‘against,’ after all, is not ‘homosexuals who are promoting,’ but rather ‘the promoting of (in the sense of by) homosexuals.’ ”

But circumstances called for a different tack.

I concluded that because of the intervening phrase “or any other group,” writing “homosexuals’ ” (and hence “any other group’s”) [with the apostrophe indicating possession] would violate what is perhaps the first rule of English usage: that no construction should call attention to its own grammatical correctness. Finding no other formulation that could make the point in quite the way I wanted, I decided to be ungrammatical instead of pedantic.

That choice — favoring a familiar tone over pedantry — well shows what made Scalia a genuinely great stylist. Notice he doesn’t abandon his belief that one usage is correct and the other isn’t; he was a prescriptivist through and through. But when he put words on a page he had a feel for the occasion; a long history of careful writing had taught him what was appropriate to the purpose at hand. We can assume he wrote for the ear as well as the eye. A sense of appropriateness separates the stylist from the showoff. It’s one way a writer meets his obligations to the reader, obligations that include clarity, simplicity, and (almost as difficult) vividness of expression.

His writing was so vivid because it was, along with much else, picturesque. Not many of our country’s working essayists (they hold guild meetings in a pantry at Joseph Epstein’s apartment) and none of its judges could handle metaphor and simile so deftly. I dip at random into a collection of his opinions and find a rebuke to justices who assess the meaning of a law, not by what it says, but by its legislative history, the political circumstances that led to its enactment — a loosey-goosey method that allows judges to do a little legislating themselves. Scalia’s images sharpened his point: “We do not judge statutes as if we are surveying the scene of an accident; each one is reviewed not on the basis of how much worse it could have been but on the basis of what it says.”

And so did his gift for caricature, in the next sentence: “It matters not whether this enactment was the product of the most partisan alignment in history or whether, upon its passage, the Members all linked arms and sang, ‘The more we get together, the happier we’ll be.’ ” In the mind’s eye a reader moves from a wreckage-strewn highway to a campfire singalong with Harry Reid and Mitch McConnell and somehow never loses track of the argument: good work for a single paragraph.

Even at its most grave, his writing was touched with humor. The greatest American prose stylists — Mark Twain or E. B. White, H. L. Mencken or A. J. Liebling — are at any moment a beat or two away from sounding a raspberry or cracking a wry or wicked smile; it’s part of what makes them American. In Scalia you often found it in his casual use of a burlesque word. We will be a stronger, more confident nation for Scalia’s having returned “argle-bargle” to the national discourse, along with “jiggery pokery” and many others.

The humor wasn’t bitter. To Scalia’s sympathizers, it was a natural response to absurdity. When a friend is in thrall to some misbegotten idea, often the better course is to jolly him out of it or, failing that, jollying friends into having fun at his expense. Argument doesn’t work when the silly idea is a consequence of mere feeling, mixed with unction. Then again, sometimes a silly idea looks like a lunge for power, especially when offered by a Court from which there is no appeal. The most recent and far-reaching example is last year’s Supreme Court decision in Obergefell v. Hodges. Scalia called it— no caricature required — “a judicial Putsch” that was “a threat to American democracy.” The majority decision, written in deep purple by Justice Anthony Kennedy, proclaimed the justices were called to “explore the extent of freedom in all its dimensions.”

For a writer like Scalia, who prized the precise and the particular (and seldom succumbed to soupy alliteration), a phrase like that would have set sirens blaring. “Dimensions” is one of those nonrepresentational words you can attach nearly any meaning to. Unless it refers to the height, length, and width of a physical object, dimension is a magic carpet for transporting us into a fairy world of abstractions. There’s no end to the number of nonexistent things that can exist in those infinite dimensions — even an obligation to redefine a concrete word like “marriage.” It is a briefer, less obviously ridiculous way of conjuring up the “penumbras, formed from emanations” in which earlier liberal justices imagined to find all kinds of fanciful creatures.

Sloppy writing makes it easier to have foolish thoughts, said Orwell. Vague writing makes it easier to disguise soppy sentiment as moral pronouncement. Obergefell seemed to offend Scalia not only as a judge but as a lover of language. Obergefell is usually described as having “legalized same-sex marriage.” Scalia’s dissent showed this is an incomplete, even misleading way of putting it. Who did the legalizing? It is truer to say the Court’s majority, on no authority beyond its own feelings, assumed the power to nullify the give-and-take of self-government, even as the people, through their state legislatures, were busy arguing the issue. Instead our robed masters imposed a new, momentous, and unprecedented legal arrangement on all fifty states, whether we liked it or not.

In the battle of opinions it was Scalia versus Kennedy, reason versus sentiment, plain-speaking versus argle-bargle, judicial modesty versus untethered self-aggrandizement. Kennedy’s style was grandiose because the opinion was grandiose — “a style,” wrote Scalia, “that is as pretentious as it is egotistic.”

One example: “The nature of marriage,” Kennedy wrote, “is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”

It’s creepy when lawyers write like this.

“Really?” Scalia replied. “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”

And on and on and mercilessly on. The dissent in Obergefell is one of Scalia’s enduring masterpieces. But perhaps my favorite passage from his writing came from the session before, in 2013. This was another gay marriage case, and as Scalia foresaw, its disingenuous purpose was to set up the ultimate power grab that was soon to come. As in Obergefell, Scalia’s theme was modesty.

“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.”

Maybe modesty is an odd theme for a man so comfortable with his own enormous gifts. But the dying fall of this last sentence, the wistful disappointment, suggests the far more important humility of a true democrat — the public man who, as Lincoln wrote, would not be a master of his fellow citizens for the same reason he would never be their slave.

Andrew Ferguson is a senior editor at The Weekly Standard.
From the February 29, 2016 issue.

About Katherine Wacker

Katherine Wacker is currently a reviewer for Bethany House Publishers, and Howard Books. She is a Craftsman graduate of the Jerry B. Jenkins Christian Writer’s Guild. She holds a B.A in History from San Diego State-Imperial Valley Campus. In her spare time she likes to read books, watch sports, and do jigsaw puzzles. She lives at home with her parents and three dogs, Charlie, Roscoe and Daisy.
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