The passive-aggressive furor of Antonin Scalia

Antonin Scalia
Photo: Bill Fitz-Patrick, White House Photographer, via Wikimedia Commons

Antonin Scalia, the Supreme Court Justice who died Saturday, had a reputation as a fierce, incisive, and sarcastic defender of conservative values. Read his most famous opinions and arguments and you’ll find his rhetorical secret: passive voice statements that obscure the boogiemen he rails against.

As my tribute to Justice Scalia, here are some quotes from his writings and oral arguments, with the passive voice highlighted in bold italic. I follow each with a restatement that reveals the missing actor of the passive sentence. Notice how much less ominous they appear when written in the active voice. [Thanks to The New York Times (first five), Politico (next four), and The Washington Post (last one) for compiling these quotes.]

GUN CONTROL: “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” [Missing subjects: Scalia himself. Translation: I, Antonin Scalia, believe that the people who wrote the constitution thought everyone should be able to have a gun.]

SAME-SEX MARRIAGE: “Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” [Missing subject: the reader. Translation: States can do whatever they like, as long as it’s not prohibited in the constitution. You can’t call it a democracy if the Supreme Court makes the decisions.]

PRESIDENTIAL POWER: “The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates.” [Missing subjects: the authors of the Constitution, the future presidents. Translation. The founders didn’t want presidents to use recess appointments as  weapon.]

GAY RIGHTS: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” [Missing subject: homosexuals, anti-gay bigots. Translation: The court went along with gay backers and refused to embrace the tradition of bigotry toward homesexual behavior.]

CAPITAL PUNISHMENT: It should be noted at the outset that the dissent does not discuss a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.” [Missing subjects: Scalia, executioners, his opponents. Translation: There’s no case in which the state killed an innocent person; if there was, someone would have publicized it.]

COURAGE: “Have the courage to have your wisdom regarded as stupidity.” [Missing subject: other people. Translation: If you’re smart, somebody will always think you are stupid. (I agree.)]

SEX: “I even accept for the sake of argument that sexual orgies eliminate social tensions and ought to be encouraged.” [Missing subject: Scalia. Translation: Go ahead, have an orgy.]

AFFIRMATIVE ACTION: “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” [Missing subject: slow black scientists. Translation: Most black scientists succeed because their schools didn’t make it too hard for them. (Sounds pretty awful when you translate it into direct language!)]

HIS FELLOW JUSTICES: “The opinion is couched in a style that is as pretentious as its content is egotistic.” [Missing subject: other Justices. Translation: You all wrote in a pretentious and egotistical way.]

SPORTS: “It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power ‘[t]o regulate Commerce with foreign Nations, and among the several States,’ to decide What Is Golf.” [Missing subject: The Constitution. Translation: The Constitution now says we have to decide what constitutes golf.]

Scalia gave his opponents fits, and continues to do so after his death. If your opponent bedevils you, find the passive voice in their statements, and render it active. You’ll soon reveal their actual intent.

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  1. I’m calling foul on this one, Josh.

    One can disagree with Scalia’s positions (me included,) but one of his core beliefs as a Justice was in drafting text that stood on its own, and meant to be understood explicitly later.

    There is a difference between “I, Antonin Scalia, think people should have guns” and “it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” Where precedent makes such a foundation, you have to reflect what others have ‘understood’ before.

    Viewed through the lens of Supreme Justice Makes Law, then you’re right. But through the lens of precedent, it isn’t so clear-cut.

    1. “It has always been widely understood” is a typical passive-voice evasion. If it has actually always been widely understood, then you need to say who understood it, and when. In the case of this particular quote, the idea that “has always been widely understood” is actually quite controversial, not universally accepted. So I call foul on Justice Scalia, who is implying agreement where none exists.

      1. You are not his audience.

        He is writing for a small group of people in the legal community, and I am certain that where citations are required they actually provide them.

        If I am writing a playbook for an Air Raid offense, and I include “It is widely understood that four verts creates havoc for single-high coverage,” then diagram a play — I don’t know that I need to cite some study or research that proves that it is widely understood. If you’re a coach, you get it.

        1. Writing is writing. Passive is passive. Passive is bad writing. If I want to change the world, I have to start somewhere — everywhere — and I’m not making exceptions for Supreme Court Justices, especially when the New York Times quotes them.

          I maintain that translating passive into active reveals truths that the authors, either through laziness or deception, would prefer that we don’t think about. And I think my translations here bear that out.

  2. Writing is writing, yes, but there is also a concept called register, which recognizes the difference between the way you would write in a note to your spouse, or an email to a business colleague, or a legal contract, or a speech.

    Your translations are really paraphrases; it would be more instructive to see how you would actually translate these into something you think would be clearer and more correct but also in a formal register required in a legal opinion.

    1. I think the whole point of the blog is that passive writing should be called out everywhere. I don’t see “without bullshit [except if you’re SCOTUS]”?

      It was a fun post, regardless of your opinion on Scalia. Legal writing gives everyone fits, and this is one of many reasons why.

    2. Passive language is so commonplace that nearly everyone uses it all the time without giving thought to what they’re saying or not saying. Once you start looking, you’ll find it everywhere in bad writing and poor communications. Unless you’re a conscientious writer, editor, or teacher who chooses to notice it and work to eradicate it, chances are, you take it for granted and think it’s just the way people talk. The last people who should speak passively are those in the legal profession and in politics, where clarity of purpose and intent, and an understanding of who did what, are so important. Josh, I really appreciate the work you do to point it out.