A Note on Rhetoric in the Haskell Re-Argument

I forgot to mention this in my long post on the Haskell re-argument, but I thought it presented an interesting example of the costs and benefits of some rhetorical styles.

In Maryland v. King, Justice Scalia wrote the dissent in his usual understated (not) way.  Near the end of that dissent, he wrote “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

During the re-argument of Haskell, Judge Milan Smith (not Judge Randy Smith, who was also on the panel) repeatedly cited this language from Justice Scalia to show that Maryland v. King did control this case.  Justice Scalia, who had sat in on the conference, said that this was what the case meant; therefore, how could the Ninth Circuit judges try to limit it?

It was a nice instance of trying to use someone’s perhaps excessive arguments against him.  Scalia’s “parade of horribles,” which he clearly intended as potential, was used to against him to say that the Court must have already accepted that position.

As a matter of pure logic, I don’t think that works. That the dissent foresees terrible results from a majority opinion does not mean that the majority has accepted those terrible results.  But it is a nice little move – and possibly a reminder to people “parade of horribles” arguments to qualify them carefully.

Hank Greely