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Antonin Scalia, William Brennan, and the Politics of Expression: A Study of Legal Violence and Repression

The study of legal politics often attends to the description and explanation of the instrumental politics of legal change or to the mobilization of rights by individual citizens as an act of empowerment beneficial to their individual liberty. Drawing far less attention from the discipline is the privileged construction of a discourse or set of attitudes about rights by the judiciary. I present a case study of the First Amendment opinions of two members of the Supreme Court of the United States to criticize the range of their attitudes about rights and to illustrate how their opinions help construct and legitimate the disciplinary actions that provide order in the modern liberal regime. To preserve order, the justices are shown to use the language of rights as an instrument for the facilitation of violence, repression, and subjection against some litigants, rather than as an instrument for the enhancement of expressive liberties.