Say what you will about Supreme Court Justice Antonin Scalia–and, frankly, there is plenty to say–you have to admit that the man’s prose, especially when he’s in the role of outraged dissenter, can be colorful, as he again demonstrated in his response to the recent Supreme Court’s decision in Obergefell v. Hodges. That’s the case in which a 5-4 majority of the Court held that the 14th Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Here is a passage from his angry dissent, which is both nasty and funny:
Bryan A. Garner, the lawyer, lexicographer, and teacher, runs a delightful blog on language, especially for lawyers, at his website, LawProse.org. He has also coauthored two books with Justice Scalia: Making Your Case: The Art of Persuading Judges (2008) and Reading Law: The Interpretation of Legal Texts (2012). Garner recently sent out an email with the following commentary on two of Justice Scalia’s recent quirky expressions. Garner writes:
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)
Antonin ScaliaBryan A. Garner
In the last few Supreme Court terms, Justice Antonin Scalia has used some memorable British colloquialisms—especially argle-bargle and jiggery-pokery.
Argle-bargle is a chiefly British phrase that has taken on the meaning “copious but meaningless talk or writing; nonsense.” It originated in the early 19th century from the Scottish term argle—a late 16th-century variation of argue. Merriam-Webster’s lists the term simply as a synonym of argy-bargy, which in BrE means “a lively discussion or argument.
Jiggery-pokery means “devious or suspicious behavior; sly manipulation; subterfuge; trickery.” The term originated in the late 19th century, most likely as a variant of the Scottish joukery-pawkery from jouk (to turn or bend, usu. to avoid someone or something) and pawky (artfully shrewd). Jouk also gives us the sports term juke (to make a false move in order to deceive an opponent), combining jouk‘s original physical sense and the metaphorical one it assumed as joukery.
Such reduplicative phrases have a way of catching the public ear. Flimflam, jibber-jabber, hocus-pocus, and mumbo jumbo are mainstays of political commentary. And flip-flop is a recurrent favorite, cropping up in prominent elections about once a decade. It was last leveled at then-candidate John Kerry in the 2004 presidential election, so keep an ear out for it in 2016.
Though Justice Scalia’s borrowings from across the Pond may sound funny to American ears, they are part of a well-established tradition and have rich histories of their own—far from pure applesauce. Before I became Justice Scalia’s coauthor (on two books), I interviewed him at length in 2006. When the Justice mentioned that Justice Robert H. Jackson is his favorite writer in Supreme Court history, I responded: “Jackson . . . was considered to be way too aggressive toward his colleagues in his dissents.”
Justice Scalia responded, chuckling: “Oh, imagine that.”