Justice Antonin Scalia is persuadable. Or perhaps he thinks you are.

The law, lawyers, and the court.
May 10 2008 7:02 AM

Persuasion

Justice Antonin Scalia is persuadable. Or he finally thinks you are.

Antonin Scalia. Click image to expand.
Justice Antonin Scalia

Had he been born 30 years later, Justice Antonin Scalia would have been a heck of a blogger. One of the few larger-than-life figures on the current Supreme Court, Scalia has also been the most disdainful of the press. In 2003, he banned all broadcast media from a speech at which he accepted a free-speech award. The next year he had to apologize to print reporters when his security guards made them erase tapes of a speech he delivered in Mississippi. Then there was that awkward episode with a possibly obscene gesture at a reporter outside a Boston church in 2006. As for the mostly bookish Supreme Court press corps, Scalia has excoriated us for an imagined tendency to reduce cases to conflicts between the "nice old lady" and the "scuzzy guy."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Yet that same Justice Scalia is taking it to the streets this month to promote his new book, Making Your Case: The Art of Persuading Judges, co-authored with professional wordsmith Bryan Garner. That's right—Scalia, who claims to believe his colleagues can't be persuaded of anything, is the co-author of a new book on persuasion. And he's not just content to teach others how to persuade—he's started doing a bit of it himself. In a series of unprecedented media appearances over the past few weeks, Scalia has taken his case for originalism directly to the American people. He's gone from the court's loneliest dissenter to the country's first infomercial pitchman-jurist. Whether this means he's reassessing his own powers of persuasion or re-evaluating the intelligence of the American people remains to be seen. 

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Making Your Case is principally a how-to manual for attorneys, as Scalia emphasized in an MSNBC interview last week with Tim Russert. It's not a book about legal philosophy. But Scalia used that sit-down—and several other interviews this month—to sell his constitutional theories. This is extraordinary exposure for Scalia, who has until now been more comfortable lobbing his intellectual grenades in closed speeches, written opinions, or his inimitable comedic performances at the court's oral arguments.

Scalia's timing couldn't be better. Last Tuesday, presidential hopeful John McCain served up a stemwinder about judicial philosophy that mostly amounted to a tired old rant about the imagined dangers of mythical "activist judges." The war on judges is hopelessly 2006—even Scalia has dismissed activist judge as a "conclusory" label we apply when we dislike of the result in a given case. Still, McCain spent a morning demonizing the entire judicial branch, mostly because judges work in private and never fight back. This makes Scalia's willingness to shuck the robes and chat about his school days and his nine children (and 28 grandchildren!) particularly welcome. The public fears secretive, mysterious judges, and Scalia proves himself very human and unpretentious, even when he's talking about water-boarding. You can disagree with most of what he's saying and still find yourself liking the guy. That's always been his great gift as a writer as well.

Scalia wields a wicked pen. He once wrote of Justice Sandra Day O'Connor's position in a case that it "cannot be taken seriously." Last year he lashed out at Chief Justice John Roberts for "faux judicial restraint." Last month he went after John Paul Stevens in a very personal attack. Scalia's writing style is a disarming mix of the lowbrow and the lofty. He recently served up the Supreme Court's first citation to Oscar the Grouch (PDF). Yet he insists that lawyers avoid all contractions, which he deems inappropriate efforts to be "buddy-buddy" with judges.

A devout Roman Catholic and admitted "social conservative," Scalia also insists his personal politics have nothing to do with his conservative constitutional methodology. As he repeated in his interview on 60 Minutes, his method of "originalism"—strict adherence to the original text and meaning of the Constitution—is perfectly value-neutral. Reacting to a question from Leslie Stahl about whether he seeks "to drag us back to 1789," he protested: "I'm not saying no progress; I'm saying we should progress democratically." It's for legislators, not judges, to adapt to evolving standards.

That's quite a sales pitch from a justice who has always taken the position that he bears no burden of persuasion. He likes to say that he gave up on swaying his colleagues, or the public, long ago. He told Russert last week that the justices' formal case conferences are "not an exercise in persuading one another." In response to a question from Stahl about his inability to charm his colleagues into embracing originalism, he repeated that his brethren are unpersuadable: "I'm not going to change their basic philosophy. These people have been thinking about the law for years." He has also stated that he writes for law students and the case books; it's "too late" for the rest of us. Which makes it that much more ironic that he has written a book about persuasion. If he truly suspects that he himself cannot influence his colleagues, how can a few writing- and oral-advocacy tips really help lawyers do so?

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