Emotion in the U.S. Supreme Court
Chapter 11 endnote 55, from Lisa Feldman Barrett.
Some context is:
You can predict the loser by simply counting the justices’ negative words during questioning. Not only that, but by examining the affective connotations in the judges’ words during oral arguments, you can predict their votes. [...] Ironically, the late Justice Antonin Scalia was known for his emotional style of discourse.
Antonin Scalia, the late U.S. Supreme Court Justice, was outspoken against the use of emotion on the bench, perhaps more so than any other justice in recent memory. For instance, he once claimed that “appealing to judges’ emotions is misguided because . . . good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most especially their emotions." Nevertheless, Justice Scalia was also known for his emotional style of discourse. On June 25, 2015, for example, the Supreme Court upheld President Obama’s Affordable Care Act. Justice Scalia’s impassioned dissent called the majority ruling “unnatural,” “pure applesauce,” and mocked his colleagues’ legal logic as “interpretive jiggery-pokery.” The very next day, the Court voted to legalize same-sex marriage which provoked another ripping dissent from Justice Scalia. He accused the Court of descending from “disciplined legal reasoning” to “the mystical aphorisms of the fortune cookie,” and said that if “I ever joined an opinion for the Court” of this kind, “I would hide my head in a bag.”
At the time that Justice Scalia joined the Supreme Court, several other justices also were known for expressing emotion in their legal opinions:
- Justice Anthony Kennedy (still a member of the Supreme Court) admits to private emotions but is ambivalent about their explicit use in a legal context.
- Former Chief Justice William Rehnquist used strong emotion above logic in informing his decisions.
- The late Justice Harry Blackmun believed that there was a proper place for emotion in legal arguments and employed emotion directly (e.g., compassion) without any pretense of neutrality.
Notes on the Notes
- Antonin Scalia & Bryan A. Garner, 2008. Making Your Case: The Art Of Persuading Judges. St. Paul, MN: Thomas/West. Cited in Wistrich, Andrew J., Jeffrey J. Rachlinski, and Chris Guthrie. 2015. "Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?" Texas Law Review 93: 855-923.
- Ray, Laura Krugman. 2002. "Judicial personality: Rhetoric and emotion in Supreme Court opinions." Washington and Lee Law Review 59 (1): 193-234.