What Outraged Scalia

Arguably, an insufficiently celebrated trick of slippery rhetoric, political and otherwise, is to argue against an assertion someone has not made. In the study of rhetoric, this trick is sometimes called “the straw man” argument, but the more practiced employers of the trick are usually more subtle in that they often don’t go so far as to create a whole false argument to refute (an easily dispatched, lightweight manikin); rather, they tend to reach a conclusion the “opponent” has not reached and then refute it. Here is an example (I think) I gleaned from the American Constitution Society’s blog (October 9, 2009):

“I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew,” observed ACLU lawyer Peter J. Eliasberg during oral argument in Salazar v. Buono this week. The case presents the issue of whether a cross erected by the Veterans of Foreign Wars (VFW) to honor war dead on federal land is permissible under the Establishment Clause of the First Amendment.

Eliasberg was fielding pointed questions from Justice Antonin Scalia on whether a cross commemorating fallen soldiers is a Christian symbol. When Eliasberg argued that the cross is generally a Christian symbol, and therefore it honors only the Christian fallen, Scalia replied, “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

Please note that Eliasberg apparently hadn’t concluded that a Christian symbol honors only “the Christian fallen”–“fallen” being, by the way, a loaded term in Christianity. As the ACS blog notes, Eliasberg’s observation about there being no crosses on Jewish tombstones was but one element of an inductive argument leading to the proposition that if a cross that is obviously shaped to suggest the Christian symbol is erected prominently in a graveyard, most people are then likely to regard the entire graveyard as Christian. Of course, if the graveyard is owned and operated by a Christian church–there are Catholic cemeteries, e.g.–then that expectation is appropriate. But the graveyard in question is not affiliated with a Christian church, so the erection of a cross, arguably, would probably change the way people interpreted the public area, and change it so as to blur the lines between one established religion and the State, as represented by federal land. At least that’s my amateur’s interpretation.

But Scalia apparently didn’t contest that implied assertion. Instead, being the helpful sort, he reached a conclusion Eliasberg hadn’t asserted and then found that conclusion outrageous. Scalia outraged himself. He “Scalia-ed” Eliasberg.


One Response to “What Outraged Scalia”

  1. Wild Bill Says:

    Justice Scalia is a master of various devices and deceptions, so we should not be surprised to see him bullying captive counsel and refuting an argument never made.

    Those proficient at such bullying have at least two tactics at their disposal. Tactic One is to assert presuppositions that suit refutations much more than they suit the arguments said to be based on the presuppositions. Dr. O and I “enjoyed” the leadership of a dean who would reason backward from an argument one had made to the shakiest premise he could imagine. Then he would assert that the arguer had presupposed what the dean himself had constructed. This underhanded response seemed artful to the credulous among the faculty, so it availed the dean. The actual presumptions of the arguer were supplanted by the preposterous premise that the dean had tossed like a grenade into a public meeting. [Usually such grenade-tossing occurred directly before or directly after the dean or some decanal ally had saluted civility.]

    Tactic Two headed in the opposite direction but otherwise was similar to Tactic One. The dean would claim that the conclusion reached by a faculty member “implied” some absurdity. Rather than reasoning backward [in at least two senses] from a stated conclusion to an absurd presupposition, the dean would reason forward from the stated conclusion to some implications neither entailed nor remotely reachable.

    The latter tactic is memorably encapsulated in “Animal House:”

    Otter: Ladies and gentlemen, I’ll be brief. The issue here is not whether we broke a few rules, or took a few liberties with our female party guests – we did.
    [winks at Dean Wormer]
    Otter: But you can’t hold a whole fraternity responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn’t we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn’t this an indictment of our educational institutions in general? I put it to you, Greg – isn’t this an indictment of our entire American society? Well, you can do whatever you want to us, but we’re not going to sit here and listen to you badmouth the United States of America. Gentlemen!
    [Leads the Deltas out of the hearing, all humming the Star-Spangled Banner]
    Thanks to the Internet Movie Database http://www.imdb.com/title/tt0077975/quotes

    There are, of couse, many ways to associate an opponent with premises that he or she never adopted or considered or ever would have countenanced. Such attributions probably work better when the person launching Tactic One or Tactic Two has some position that protects him or her from a logical riposte. Bullies tend to use such rhetorical mortar rounds from some distance that the target likely will not be able to cross. In the Supreme Court, Justice Scalia is insulated by decorum, a bench, and time-limits from an advocate’s pointing out that Justice Scalia is misleading everyone present. In a faculty meeting, a dean is usually protected by etiquette, sanctions availble to administrators, and limited attention spans from the ill-used academic’s complaint that the dean willfully distorted the academic’s argument.

    I am fascinated by the betrayal involved either in court or in academe. Legal argumentation and academic deliberation once pretended to transcend “The McLaughlin Group” or “The Jerry Springer Show.” Nowadays, winning is honored to such an extent that unworthy but effective verbal tactics are to be expected. Deans and judges make themselves traitors to aspirations they once swore to respect. Judges and deans debase themselves for so little profit.

    But what are we to do when mendacity “works” so well?

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