The Most Sarcastic Justice
Richard L. Hasen, The Most Sarcastic Justice, 18 The Green Bag 2d 215 (2015).
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 or reader of the Green Bag (the two categories overlap almost perfectly), is probably: “Well, duh!” And your second reaction is likely: “Oh really? Well how can you prove that?”
In this short essay, I do four 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 consider some methodological quibbles. Third, 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. Finally, 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 one of his most enduring legacies.