realizing there are many who think very highly of Justice Scalia and his opinions, the problem I see time and again with Scalia's "skilled rhetoric": is that it is snarky and uses allusions that bespeak stereotypes, say, of LGBT people. For example, his "rhetoric" in *Romer* which alludes to the disproportionate "political power" of gays, the reference to NY, LA, SF and Key West, his reference to "seemingly tolerant Coloradans" against a "politically powerful minority", "fully acceptable 'alternative lifestyle'" etc. all conjur images of gay people that are based on not-so-veiled stereotypes. At other times and in other cases, Scalia is just mean and personal in his attacks on other Justices. Thus, if his dissent in *Lawrence* were confined to an outraged cry of frustration, rather than a continuing nastiness, I might be inclined to think of him as a "skilled rhetoritician." But maybe "skilled rhetoric" encompasses the kind of nastiness that pervades much of argument these days. Respectfully Lynne
Prof. Lynne Henderson Boyd School of Law--UNLV ----- Original Message ----- From: "Tom Grey" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Friday, June 27, 2003 12:16 PM Subject: Re: Jeremiad or jihad? > We think of Scalia as engaging in jeremiad or call to jihad because we > assume he's a cultural conservative appalled by what he sees as moral > degeneration , a la Bill Bennett. But aren't the actual structure of his > references to "culture war" the same as Holmes's to "economic struggle" in > his many opinions in the vein of the Lochner dissent? As in: There's a > battle going on, the Constitution doesn't take sides in it, it's natural > for judges (given their class and education) to side with one of the > competing factions and see the other as irrational and benighted, but in > their capacity as judges they should stop and reflect on the fact that it's > a struggle in which sympathies and associations rather than reason > determines views, and stop taking sides. > > Of course Holmes had the distinct rhetorical advantage over Scalia that his > sympathies ran against the outcomes he was advocating. > > It's also worth noting that Bismarck's original Kulturkampf was against > Catholicism -- I suspect that's what attracts Scalia to the English > translation of the phrase. But as a skilled rhetorician, he should > recognize that it does open itself up to other unattractive associations, > the ones Molly Ivins was exploiting when she said Pat Buchanan's > Republican Convention "culture war" speech "probably sounded better in the > original German." > > Tom Grey > Stanford Law School > [EMAIL PROTECTED] > > > > Sanford Levinson > <[EMAIL PROTECTED] To: [EMAIL PROTECTED] > TEXAS.EDU> cc: > Sent by: Discussion Subject: Re: Jeremiad or jihad? > list for con law > professors > <[EMAIL PROTECTED] > ucla.edu> > > > 06/27/2003 11:23 AM > Please respond to > Discussion list for > con law professors > > > > > > > Mark Graber writes: > > Scalia's seem a call for a jeremiad. Once a term perhaps. But not two a > week. > > > Scalia's opinion IS a "jeremiad," a sermon about the decline (and > potentially baleful future) awaiting the community that has strayed from > its foundations (usually divine, given that the classic jeremiads were > delivered by such as Cotton Mather). So does Mark actually mean to use the > word "jihad"? This would, after all, be appropriate for those who believe > they are involved in a kulturkampf. > > sandy
