Thursday, June 26, 2014

Rhetorical Combat on the Supreme Court?

Mark Tushnet

Quite impressionistically, and based on nothing more than a sense of things, it seems to me that this Term a number of Justices have become (more) willing to take on Justice Scalia's sharp rhetoric. We have Justice Kagan referring to Justice Scalia's "wit gone wrong" in Abramski (a particularly sharp riposte in light of Justice Scalia's reputation as a witty writer), and her reluctance to go further "down an endless rabbit hole" in response to one of his hypotheticals in Loughrin. In McCullen the Chief Justice dismisses one of Justice Scalia's point with this: "Justice Scalia can decry this analysis as 'astonishing' only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges." My sense is that there has been more of this rhetoric over the Term, and ore this Term than previously. I wonder whether (if my impressions are accurate) this reflects something new in the Court's internal dym=nanics.

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