Ethics

Justice Scalia dissented in  MIchigan v. Bryant this week. We can understand his annoyance. The Court's opinion further chipped away at Scalia's ingenious repositioning of the Confrontation Clause in Crawford v. Washington.

The Court has long been at sea on the meaning of the clause and Crawford and later Davis v. Washington and Hammon v. Virginia, companion cases where Scalia again authored the majority opinion, were credible efforts to set things right. Indeed, even if you do not agree with the results, Scalia's effort to reconcile seemingly inconsistent and confusing court decisions across two centuries, was brilliant.

Now his majority is dissolving and, as Scalia sees it, with ample justification, Confrontation Cl ause doctrine is adrift, with no clear beacon to guide lower courts in applying the clause.

But some of the language in Scalia's Bryant dissent is harsh, and one wonders what it does to the relationships at the Court not to mention the effort to encourage civility at the bar.  Lawyers have been disciplined for tossing the same darts at judges as Scalia throws in this dissent. See, e.g. Matter of Wilkins (Ind. 2002), where a lawyer's brief "wonder[ed]" whether the court ignored the law and facts to reach its intended result.

In Bryant, Scalia wrote this about Justice Sotomayor's majority opinion:

"Today?s tale?a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose?is so transparently false that professing to believe it demeansthis institution.... In its vain attempt to make the incredible plausible ...today?s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort....

"[T]oday's decision is not only a gross distortion of thefacts. It is a gross distortion of the law?a revisionistnarrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned."

Scalia used similar "ad personam" (the inclusive term for "ad hominem") language in response to Justice O'Connor's opinion in Webster, describing it as "irrational."

Now, maybe, all this is just about the ideas, not the other Justices personally. But it is rather strong language, and certainly not necessary to make one's point. A lawyer calling a judge "irrational" in one of his or her cases, or saying that the judge has "grossly distorted" the facts or law in the case, would be in trouble.

Is it a coincidence that the two opinions that angered Scalia cited here were written by women? Maybe it is a coincidence. Maybe Scalia is quite willling to characterize the opinions of all of his male colleagues as aggressively. One would have to do a study. Whatever the answer, the verbal assaults set a poor example for lower courts judges, the bar, and the public. In that Wilkins case from Indiana mentioned above, a dissenting judge, opposing discipline, cited Scalia's invective as indistinguishable from the comments of the disciplined lawyer.