Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case

31 Pages Posted: 10 Oct 2014

Date Written: 2002


Most commentators on Justice Scalia’s dissents properly focus on the substantive merits of his disagreement with his colleagues. After all, if he is illogical, misuses authorities, misreads statutes, or otherwise compromises the integrity of his analysis, then his colleagues on the Court have rightly rejected his opinion. But, as even his critics concede, Justice Scalia is a highly intelligent, resourceful, and experienced advocate for his views. However, successful advocacy depends on more than substantive merit. It also depends on an advocate’s personal credibility and the emotions the advocate provokes when making arguments. The affective or emotive aspects of Justice Scalia’s dissents have always received considerable attention, but this attention frequently focuses on his tone and diction. Even while decrying Justice Scalia’s aggressive tone and word choices as overly personal and ill-tempered, commentators often overlook several subtler rhetorical forces at play in his dissents. For a deeper understanding how these forces work, they should also consult the analytical techniques espoused in the works of Aristotle, Cicero and Quintilian over 2,500 years ago.

Keywords: Greco-Roman rhetoric, Scalia, ethos, pathos, logos, Aristotle, Cicero, Quintilian, VMI case, analytical techniques

Suggested Citation

Frost, Michael, Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case (2002). Kentucky Law Journal, Vol. 91, p. 167, 2002, Available at SSRN: https://ssrn.com/abstract=2507588

Michael Frost (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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