My assessment of Justice Scalia's reputation for sarcasm [UPDATED with response from Hasen]

|The Volokh Conspiracy |

Rick Hasen has a very short new essay attempting to measure who is "The Most Sarcastic Justice." (The essay is the highlight of this column by Adam Liptak, too.) Here's the abstract:

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, is probably: "Well, duh!" And your second reaction is likely: "Oh really? Well how can you prove that?"

In this short essay, I do three 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 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. Third, 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 his most enduring legacy.

I cannot tell exactly how tongue-in-cheek Hasen's essay is intended to be. (Speaking of which: Does anybody still read David Currie and Frank Easterbrook's exchange on "The Most Insignificant Justice"? Other than Chief Justice Roberts, that is, who discusses the exchange here.).

That said, two thoughts:

First, it seems to me that Hasen's methodology reflects a serious circularity in observations of the tone of Supreme Court Justices. When observers call a Scalia opinion "sarcastic" (or "stinging" or "caustic" or "angry" or anything else), I am not always sure whether this assessment is derived from what is actually written down, or from what the observer expects the tone to be.

Hasen acknowledges this and refers to it as the "'echo chamber' effect," which he says he "cannot eliminate." It seems to me that one way to eliminate it would be to have a set of readers, preferably those unfamiliar with the personal reputations of any of the Justices, read a bunch of anonymized Supreme Court passages and then evaluate the tone of the passages. Maybe the result would still be the same—I wouldn't be surprised—but it might also be much less dramatic.

Second, Hasen briefly, and equivocally, evaluates the question of whether Justice Scalia's reputation for sarcasm—whether deserved or not—is a good thing. Hasen suggests that students "love reading Scalia opinions" in part because of their tone, but he "has not seen" that the writing style makes Scalia's more persuasive than others. I am not so sure that the two can be disentangled, however. The first step to persuading others is getting them to read you—a lesson us law-bloggers know all too well.

[For my previous post on the audience for Justice Scalia's "fantastic, enduring, dissents" see here.]

Update: Hasen responds to my first point here.