May 2, 2004

"I am a textualist. I am an originalist. I am not a nut."

So says Scalia. And here's an interesting statement from Georgetown lawprof Mark Tushnet, which appears in the big frontpage NYT article about Justice Scalia:
"His writing style is entertaining in the way that shouting matches on `Hardball' are entertaining .... "Nobody persuades anyone by shouting on `Hardball.'"

Hmm... so if no one is persuaded by the shouting overtalking on Hardball, and Hardball and Scalia's writing are both entertaining in the same way, then Scalia's opinions are not persuasive? But Scalia's writing style isn't just "entertaining." The entertaining statements are more likely to be epigrams than epithets. And of course, there's no overtalking.

Slogging through Supreme Court opinions and imposing them on my students, I constantly dearly wish all the Justices would write like Scalia (or Jackson or Holmes, to whom Scalia is compared elsewhere in the article). Like most law review articles, the Justices' opinions are usually written in a characterless, "learned" tone. Does persuasion consist of boring your opponent into submission? If you were going to write ten (or twenty or forty) pages that thousands of students were going to meticuously study, shouldn't you take the trouble--the opportunity!--to write something engaging? Reading the opinions of the other Justices, I often suspect the point is to give everything a look of tedious, unexceptionable regularity to disguise all the seams and shortcomings.

There's much more in the Times article, but funniest sentence is: "Some scholars detect a rightward drift in Justice Scalia's recent decisions." And the nominees for funniest word in that sentence are: