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

By Dahlia Lithwick
Posted Saturday, May 10, 2008, at 7:02 AM ET
Antonin Scalia. Click image to expand.

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."

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.

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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Dahlia Lithwick is a Slate senior editor.
Photograph of Antonin Scalia Saul Loeb/AFP/Getty Images.
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Remarks from the Fray:

If Thomas's approach to the constitution is 'even more radical,' I guess we are to take it that Scalia is a radical. To a liberal like Lithwick I suppose this is true but others might be skeptical of the claim. Milton Friedman famously self-described his own views - he wanted to upturn what had become the unquestioned status quo in economic theory and return it to the precepts made famous by Adam Smith. In this way I suppose Scalia might be seen as a radical. But only because those around him have made their own radical deformations of the court appear to be a state of nature to liberals....

--joedelrayart

(To reply, click here.)

While Scalia is undoubtedly a radical, at least he didn't perjure himself during his confirmation hearings -- unlike his colleagues Roberts, Alito and Thomas.

Their "say whatever it takes to get confirmed" perjuries during their confirmation hearings should lead to their collective impeachment.

The Federalist Society is an anti-democratic subversive organization dedicated to the misapplication of state power. Judges like Scalia, Roberts, Alito and Thomas have proved that membership should disqualify life-time appointment to the federal judiciary.

--JackHughes

(To reply, click here.)

Fred Friendly used to moderate discussions with law types about constitutional issues that were aired on PBS stations and the like. Scalia took part in some of these discussions, even with the idea of some that judges shouldn't involve themselves with hypos outside of the court room.

He also put up his views of originalism and interpretation to criticism, his earlier book on his matter of interpretation having commentary from a historian, liberal lawyer and so forth, which he then responded to as well. This also is not exactly the same thing as being interviewed by a journalist, but does show a willingness to put his views up to scrutiny.

As to persuasion, Scalia appears so sure of himself that he figures that those who don't accept the obvious truth are boobs not really worth the effort. His friendship with Ginsburg suggests an ability to get past that on some level, but a "do what I say, not what I do" strategy should be part of the book Dahlia discusses here.

His comments in public has received some rightful criticism, but I do commend him for at least voicing them openly. Cf. The secrecy of his pal Cheney and his bunch, secrecy that led to the promotion of various insidious legal doctrines.

--Joe_JP

(To reply, click here.)

I watched Justice Scalia and while I respect him I was not at all charmed by him. He may be a decent man but personally, I think his "dead document" description of the Constitution is cute but dangerous.

The framers of the Constitution could not possibly anticipate the world today. They did an excellent job of writing as broadly as possible but the Constitution still must be interpreted in light of today's society.

No, I'm not at all well versed in what Jefferson or Madison wrote in their private papers about what exactly constituted privacy when they wrote the Constitution. Does it matter? We don't live in 1787, we live in 2008.

Scalia's "originalism" doesn't seem to take into account the changes that have moved the government far from it's original definitions. For instance, what exactly is a militia today? What we call the Guard and the Active Services are no longer what were understood in 1787. How can one apply originalism to a concept that no longer represents what the Constitutional authors understood it to be?

That the other justices still count him as a good friend, even after his insults, speaks to his character. But Adams and Jefferson were good friends too and never embraced each other's politics.

--Adrasteia

(To reply, click here.)

Scalia's position, when consistently applied, is the only one that is worthy of a free people. Liberal, living constitution types, simply don't trust the American people to do the right thing. This nonsense of "evolving standards of decency" is a pure smokescreen. If society's standards had really evolved, then the legislative process would be sufficient to change the law. The fact that judges must force change in the face of majority resistance proves that society's standards have not evolved.

It is the job of judges to protect the actual constitution from being eroded by "evolving standards." You've got enough work to do protecting my real, actual, enumerated rights. Let us worry about whether or not we want to add new ones for you to protect.

--the true conservative

(To reply, click here.)

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