DISRESPECTFUL DISSENT: JUSTICE SCALIA'S REGRETTABLE LEGACY OF INCIVILITY.

• Author: Entrikin, J. Lyn

Just as we judge people by... the principles they reject as well as the values they affirmatively maintain, so do we look at judges' dissents, as well as their decisions for the court, as we evaluate judicial careers. During his nearly thirty years on the Supreme Court, the late Justice Antonin Scalia earned a reputation for writing vitriolic dissents. (2) Meanwhile, the general tone of civic discourse has become at best dismaying and at worst demoralizing. (3) Justice Scalia did not live long enough to witness the 2016 presidential campaign as it played out, nor could he have anticipated how his death would reduce partisan polemics to a new low. (4) The political discourse characterizing the 2016 presidential election represented the modern nadir of civility in the public square.

Largely insulated from such outside political pressures, Supreme Court Justices long hewed to norms of civility, collegiality, and respect, even if not always reaching consensus. With few exceptions, the Justices have disagreed about even controversial legal issues in mutually respectful discourse. They have customarily demonstrated a deep appreciation for the Court's role in our democracy, and an understanding that public respect and confidence in the Court's institutional integrity is essential for its independence.

Not so with Justice Scalia. His dissents frequently reflected uncloaked scorn for the majority. (5) And although he has been celebrated in death as a brilliant judicial giant, (6) his departure from the custom of respectful dissent marked a turning point in the Court's tradition of collegiality and civility. (7)

Given the regrettable and apparently unchecked decline in the civility of public discourse in all branches of our government, (8) we might consider whether Justice Scalia's increasingly vitriolic dissents set a new course for government speech. And if they did, we should consider the implications for his legacy. As one scholar observed, his "dissents have not won over many adherents, and in some areas, despite the force of his protest, he may well be on the wrong side of history." (9) Others have warned that "the nastiness among the Justices contributes to the lack of civility among lawyers." (10) Perhaps the "sting" of Justice Scalia's aggressive rhetoric was "somewhat mitigated by its confinement, by and large, to dissents." (11) Or does a disrespectful dissent by a Supreme Court Justice always set a bad example? (12)

Part I of this article reviews the Supreme Court's history of issuing separate opinions. Part II maps the declining civility of Justice Scalia's dissents during his four years as a circuit judge followed by three decades on the Court. Part III considers the extent to which Justice Scalia's jurisprudence has influenced the law. (13) Part IV assesses whether the increasingly divisive tone of Supreme Court dissents implicates judicial ethics and undermines civility among the bench and bar. Finally, Part V discusses whether Justice Scalia's frequent departure from the custom of respectful dissent contributed to the increasingly negative tone of all contemporary government speech. The article concludes by suggesting steps the Court should take to ensure that Justices serve as exemplars of civility and respect in public discourse.

1. OVERVIEW OF THE COURT'S OPINION-ISSUING PRACTICES

   Supreme Court Justices have not always had the same attitude toward the expression of dissent.

   A. The Early Years

   For much of the Court's early history, dissents were issued only rarely, (15) and then often only reluctantly and even apologetically. (16) Most of the earliest reported Supreme Court opinions--issued from 1790 to 1800--were written "by the Court," without attribution by name to the opinion's author. (17) About one fourth were issued seriatim following the tradition of English courts, each Justice issuing an individual opinion. Often a seriatim opinion was followed by a brief order disposing of the case. (18) History does not make clear why some of the earliest opinions were issued "by the Court" and others seriatim, but in the Court's early years its opinions took no set form.

   Beginning in 1801, opinions were almost exclusively authored by Chief Justice John Marshall as a means of unifying the Court and establishing its institutional authority. (19) After Justice William Johnson's appointment in 1804, Chief Justice Marshall was persuaded to rotate opinion writing, and Justice Johnson occasionally issued separate opinions. (20) Unanimity of the Court's decisions weakened further later in the Marshall era.

   Chief Justice Marshall had his critics, including Thomas Jefferson, (21) but his tight rein over the Court's early opinion-issuing practices has been recognized as entrenching the Supreme Court as a co-equal branch of government. (22)

   B. The Beginnings of Respectful Dissent

   During Chief Justice Taney's leadership, dissents were so uncommon that Justices often apologized for offering them. (23) Typical are this introduction and conclusion:

   I dissent from the opinion of the court. The principle upon which the case is decided is so important, and will operate so widely, that I feel it my duty to show the grounds upon which I differ. This will be done as briefly as I can; for my object is to state the principles of law upon which my opinion is formed, rather than to argue them at length. And believing, as I do, upon the best consideration I am able to give to the subject, that the decision and the principle upon which the opinion of the court founds itself is inapplicable to the case before us, and that if it is carried out to its legitimate results it will deprive the admiralty of power, [which is] useful, and indeed necessary, for the purposes of justice, and conferred on it by the Constitution and laws of the United States, 1 must respectfully record my dissent. As the Court gradually took its place as a co-equal branch of government, Justices began writing separately to demonstrate the consistency of their individual views over time rather than to express disagreements on specific issues. (25) Dissents began to underscore the Justices' principles and views as separate individuals rather than as faceless members of the Court's consensus. (26) But even after separate opinions became less apologetic, they almost always used respectful rhetoric. (27) Yet there were exceptions. As early as 1854, a concurring Justice pointedly criticized the Court's reasoning:

   [T]he decision... seems to me incomprehensible, unless understood as designed to overrule [Vidal v. Girard's Executors], and every authority from the English chancery cited and commented upon in its support. For such an assault upon the previous decision of this court, wielding a blow so trenchant and fatal at one great and acknowledged head of eauity jurisprudence, the head of trusts, my mind is not prepared. (28) Illustrative of the Taney Court's norms of internal collegiality and mutual respect is Dred Scott, (29) the most divisive decision of the nineteenth century. The Justices' nine separate opinions and the political controversy they engendered foreshadowed the Civil War, the Emancipation Proclamation, and later the adoption and ratification of the post-Civil War amendments to the Bill of Rights. (30)

   Justices McLean and Curtis issued dissents, both respectful, cordial, and couched in lofty discourse. (31) Justice McLean objected to anything in the majority opinion beyond its holding that the court below lacked jurisdiction, but he also respectfully addressed the central issue:

   In this case, a majority of the court have said that a slave may be taken by his master into a Territory of the United States, the same as a horse, or any other kind of property.... A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence. (32) Justice Curtis wrote more forcefully, but still respectfully:

   If this power [to declare who is a citizen] exists, what persons born within the States may be President or Vice President of the United States, or members of either House of Congress, or hold any office or enjoy any privilege whereof citizenship of the United States is a necessarv qualification, must depend solely on the will of Congress. (33) Whatever individual claims may be founded on local circumstances, or sectional differences of condition, cannot... be recognized in this court, without arrogating to the judicial branch... powers not committed to it; and which... I do not think it fitted to wield. (34) And Justice Curtis concluded in an almost apologetic tone, explaining his reasons for writing separately:

   I have expressed my opinion, and the reasons therefor, at far greater length than I could have wished, upon the different questions on which I have found it necessary to pass.... These questions are numerous, and the grave importance of some of them required me to exhibit fully the grounds of my opinion.... To have done either more or less, would have been inconsistent with my views of my duty. (35) During Chief Justice Taney's later years and as the Civil War approached, the tone of separate opinions shifted from the norm of respect to reflect increasing hostility. Justices became less concerned about the Court's role as an institution and instead focused their attention on their individual reputations. (36)

   C. The Separate Opinion in a Time of Socioeconomic Turmoil

   After Chief Justice Taney's death in 1864, Supreme Court Justices filed separate opinions in an expanding range of cases, even while continuing to express reluctance in doing so. (37) But some Justices also occasionally issued unapologetic separate opinions expressing disdain for the Court's opinions. (38)

   By the late nineteenth century, separate opinions were no longer considered out of the ordinary. In 1892, a brief dissent issued by Justice Brewer (39) expressly relied on the "elaborate...