I’ve now taught Philosophy of Law twice: first, in Spring 2007, and then later, two sections in Spring 2011. An important section of the class syllabus, once we have completed a comparison and discussion of natural law, positivist, and legal realist theories of the law, is legal reasoning. And invariably, an important topic in legal reasoning is reasoning by analogy (which is often introduced as a part of the section on reasoning from precedents). This is introduced and highlighted as an important component of what it is that lawyers do; because many of my students aspire to go to law school, I point out to them that they will often be exposed to reasoning by analogy in many of the cases they study, that they should become good at it and that learning how to effectively reason by analogy is part of making you ‘think like a lawyer.’ My students and I read, for instance, Cass Sunstein’s “On Analogical Reasoning” (Harvard Law Review, v. 106, pp. 741 ff.), study standard examples and case studies where reasoning by analogy has been used–for instance Donoghue vs. Stevenson (1932 S.C. 31)–in a critical effort to evaluate the applicability and validity of this mode of reasoning. It is one of the most enjoyable sections of the semester; my students and I spend considerable time arguing about whether a particular analogy works or not and what role reasoning by analogy has in legal reasoning in general.
In the light of these considerations, I have one overriding reaction to the Scalia Broccoli-Is-Like-Broccoli Analogy. This is an embarrassment, or should be, to Scalia and his acolytes. (These shrieking hordes are found, most commonly, in the Federalist Society of any major law school; I have it on reliable authority that they all aspire to be Scalia when they grow up.) I wonder if Scalia realizes what a bad advertisement for legal reasoning he is. The man went to a top law school, had a long career in the law, serves on the Supreme Court, and this is the analogy he constructs? Of what use such expensive education? But this apparently was not an embarrassment enough for some folks. Predictably, Scalia’s reasoning was defended as a zinger, an awesome putdown that put the Obama Administration on the mat. With cheerleaders like that, anyone can be a Superbowl MVP.
Days after the analogy was made, I’m still wondering: How is broccoli like healthcare? Because you can buy both? Because both are ‘good’ for you? Perhaps Scalia could have said, “So the government could compel you to buy a round-the-world-ticket airfare because travel to foreign lands is good for you?” Wouldn’t his Federalist Society fans have found that even funnier? I’ve come to suspect that Federalist Society fans think of Scalia as the Joker on the Supreme Court, grinning away furiously, zapping one counsel after another with, “Why so serious? This is all just political shenanigans! Say whatever you want – we know which political outcome we’d like to get our hands on.”
Scalia reminds me of that Dana Carvey rockstar who brings in broccoli, because, well, he just wanted to: