Oh, what fun! Mary Anne Case (a clear example of nominative determinism, I’m sure) posts a paper to SSRN stuffing the rhetorical methodology of the late Justice Scalia into the myths of Procrustes and Cassandra. Here’s the summarizing paragraph:
The essay will go on to use another Greek myth, that of Procrustes, to shed light on a tendency in Scalia’s majority opinions. Just as Procrustes forced his guests to fit snugly into an iron bed, stretching out their bodies or chopping off their limbs as necessary, so Scalia frequently forced all prior doctrine in a given area of law into the shape he needed for the new rule he announces in a majority opinion. As with Procrustes’s unfortunate guests, so with Scalia’s procrustean majority opinions, the result, I shall argue, is often that the operation is a success, but the patient dies: subsequent decisions, whether by courts or legislatures, tend to back away from the implications of the categorical rule Scalia had gone through such pains to fashion. The paradoxical result is that Scalia as Cassandra dissenting has sometimes been more effective in illuminating the path to results he deplores than Scalia as Procrustes has been in bringing about results he favors. This is so notwithstanding that Scalia in procrustean mode does his rhetorical best to minimize the innovative or controversial character of his holding for the majority, whereas Scalia in dissent seeks rhetorically to maximize the unprecedented and revolutionary character of the majority position to which he objects.
Sadly, SSRN won’t give me access to the rest of the paper – claims I’m unusual. Maybe so. But it’s an interesting assertion on Ms Case’s part, suggesting that either Justice Scalia permitted his biases to run away with him, or the source of law – the legislatures – is basically irrational. I’d go with the latter, myself, as it’s an obviously true conclusion.
