Scalia’s Legal Writing Legacy

by Ken Bresler
Massachusetts Lawyers Weekly, Rhode Island Lawyers Weekly,
The Daily Record (New York State), February 22, 2016

            I have praised and I have upbraided the writing of the late Supreme Court Justice Antonin Scalia. “Love him or hate him substantively, but Justice Scalia is a marvelous legal writer,” I have observed. “Who else on the high bench has such a recognizable style that it deserves an eponymous adjective? My definition of ‘Scaliaesque’ or ‘Scalia-esque’ (although I’m tempted to write it as ‘Scalia-Esq.’): ‘Of or pertaining to Supreme Court Justice Antonin Scalia; his sharp and witty style of speaking, questioning, or writing; forceful and colorful legal writing; or originalist constitutional theory.’”

That was from my article about the seven best legal words of 2014. I named “dicutmizer” as the top word. Scalia used it in his concurrence to Schuette v. BAMN, 134 S.Ct. 1623, 1645 (2014).

I wrote this about the opinions ending the Court’s 2014-15 term: “Some of Justice Scalia’s language passed from colorful and barbed into colorful and sarcastic. Some passed from sarcastic into caustic.” And this: “[T]he world does not expect civility, collegiality, and eloquent understatement on TV ‘talk’ shows and in political campaigns. But it does expect them from Supreme Court justices.”

In the midst of overarching retrospectives of Justice Scalia’s legacy from other commentators, may I note two small ways in which he contributed to and helped changed the legal writing culture?

Justice Scalia was the first justice to use “chutzpah” in a Supreme Court decision, in 1998. “Chutzpah” (pronounced with the throat-clearing “ch” in “achtung”) is a Yiddish word that means “Audacity, especially when an argument or position is advanced hypocritically, with unintentional irony, or with unclean hands.” (That definition is from my on-line legal dictionary.) Scalia, a non-Jew, used this classic Yiddish word in National Endowment for the Arts v. Finley, 524 U.S. 569, 597 (1998) (Scalia, J., concurring); he accused the National Endowment for Arts of “a particularly high degree of chutzpah.” He helped solidify “chutzpah” as a legal word, not just a Yiddish one.

Scalia’s dissent in Abramski v. U.S., 134 S. Ct. 2259, 2278–79 (2014), might have been the first use of bullet points in a Supreme Court decision. As I wrote in The Scribes Journal of Legal Writing, “If any lawyer thinks that bullet points don’t belong in briefs – use an outline format, yes; but bullet points, no, because they’re not numbers or letters – it will be harder to sustain that position when a Supreme Court Justice is bulleting points.”

I didn’t write that lightly in Scribes, that Justice Scalia might have been the first to use bullet points in a Supreme Court decision. As a lawyer and former journalist, I try to avoid guessing. I, a user and advocate of bullet points, didn’t remember seeing bullet points before Abramksi. But how was I supposed to check if Justice Scalia’s bullet points were the first? If Lexis, Westlaw, and other legal databases can be searched for symbols, I don’t know how. One way to check was to write to Justice Scalia himself. So I did. And he was gracious enough to write back.

On thick off-white stationary, embossed with the Court’s seal, with the letterhead “Supreme Court of the United States / Washington, D.C. 20543” in Gothic letters and “Chambers of Justice Antonin Scalia” in an elegant sans serif font, he wrote: “I’m afraid that I do not have the slightest idea whether any prior Supreme Court decision used bullets. They seemed to me called for in the context in which I used them – and I’m glad you approved.”

While Justice Scalia’s constitutional theory was rooted in 18th century America, his writing was not. His legal writing was both edgy (sometimes too edgy) and cutting edge. His death leaves Justice Elena Kagan as the high court’s most colorful and innovative legal writer.