S is for Scalia and Sarcasm

S is for Scalia and Sarcasm

Someone once said, “Nothing is more discouraging than unappreciated sarcasm.” While Justice Antonin Scalia’s penchant for being sarcastic may be unappreciated, it certainly doesn’t go unnoticed.

As reported both by The New York Times and The Washington Post, Rick Hasen, a law professor from the University of California, Irvine, has written about Scalia’s sarcasm. The essay abstract reads as follows:

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, is probably: “Well, duh!” And your second reaction is likely: “Oh really? Well how can you prove that?”

In this short essay, I do three things. First, I present empirical evidence showing that Justice Scalia’s opinions are magnitudes of order more likely to be described in law journals as sarcastic compared to any other Justice’s opinions. The numbers are quite remarkable, and do not vary whether Justice Scalia is compared to liberal or other conservative Justices who have served with him on the Court since his 1986 confirmation. Second, I present some illustrative examples of Justice Scalia’s sarcasm from a list of 75 sarcastic opinions from 1986-2013. His ability (and willingness) to engage in nastiness, particularly directed at other Justices’ opinions, is unparalleled. Third, I opine that Justice Scalia’s sarcasm is a mixed blessing. On the one hand 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, and it arguably demonstrates Justice Scalia’s lack of respect for the legal opinions of his colleagues. In the end, his sarcasm may be his most enduring legacy.

According to The Times, Justice Scalia registered a 2.78 on the professor’s sarcasm index. By comparison, Justice Samuel A. Alito Jr., second on the index, achieved a 0.43. Meanwhile, neither Chief Justice Roberts Jr. nor Justice Sonia Sotomayor even made the index.

What do you think about the Justice Scalia’s sarcasm? Persuasive or counterproductive?

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