Scalia: Not Just Offensive, Ludicrously Overrated

As Mark Tushnet has pointed out, Scalia is erroneously considered an intellectual standout on the Court because of his unusual tendency to write and speak in prose more generally seen on political shoutfests and op-eds.  Very frequently, these glib, attention-grabbing phrases are used to advance arguments that are essentially self-refuting.   For example, the oft-quoted phrase in his Romer dissent that “The Court has mistaken a Kulturkampf for a fit of spite.”  Oooh, erudite!   Only, what the hell is he talking about?  OK, so the Colorado amendment permanently singling out gays and lesbians and preventing any state institution from offering them rights protections is like anti-Catholic progroms and imposed legal disabilities in 19th century Prussia.   Um…so you’re saying Kennedy is right?  How could a “Kulturkampf” be consistent with the equal protection of the laws?  If Scalia had just used the banal phrase he was presumably trying to invoke  — “culture war” — this would have attracted less attention but also would have had the advantage of not blowing his own argument to smithereens in the first line.

But, as I mentioned in my piece yesterday, Scalia’s campaign in two oral arguments to argue that the strong bipartsian support for the Voting Rights Act is more reason for the Supreme Court to step in may be the best example of why Scalia is so egregiously overrated.   To expand on my point a little, let’s return to what he said at oral argument in 2009:

Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

First of all, we have a show of erudition that is at best irrelevant and misleading.   The use of the phrase “Israeli supreme court” suggests that the practice was used by the contemporary (rather than the biblical) state of Israel.   But, of course, the modern Israeli state does not have the death penalty for anything but war crimes and has never had a rule that it could only be applied by a majority-but-not-unanimous vote.   Explicitly making clear that this was a reference to biblical Israel would have immediately made clear how anachronistic his point was.

But that aside, what’s more striking is that the argument is transparently idiotic.   Nobody thinks that verdicts of a unanimous jury are less reliable than the verdicts of a mere majority.    Permitting juries to convict without unanimity is an anomalous practice in the Anglo-American legal tradition for obvious reasons. And even in the rare jurisdictions where a supermajority rather than a unanimous jury verdict is sufficient, a unanimous verdict isn’t seen as not constituting a guilty verdict.   Scalia’s glib attempted cleverness serves to make his opponent’s point perfectly once again.

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