Carlo A. Pedrioli, American Bar Foundation, has published Judicial Neutrality Awash with Ideology: Justice Scalia, Sexual Orientation, and Rhetorical Personae at 21 Tex. J. C. L. & C R. 183 (2016). Here is the abstract.
In light of Justice Antonin Scalia’s having dissented from the U.S. Supreme Court’s support for sexual minority rights in a series of cases decided under the Fifth and Fourteenth Amendments, this paper, drawing upon rhetorical theory, considers Scalia’s rhetoric of sexual orientation. In his dissents in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, Scalia performed and constructed various rhetorical personae, or roles, including the first, second, and third personae, that produced rhetorical hypocrisy grounded in a heteronormative ideology. The first persona, or speaker of the dissents, that Scalia performed was that of a neutral justice. The second persona, or the audience implied in the dissents, that Scalia constructed would receive appeals to tradition and majoritarian rule favorably and, ignoring the possibility of change in tradition and likewise ignoring minority rights, be susceptible to the alleged political threat of sexual minorities. The third persona, or the marginalized party in the dissents, that Scalia constructed consisted of the sexual minority as a criminal or other individual not thought highly of, such as a person with a drug addiction, a polygamist, or a prostitute. Although Scalia’s performance of a neutral justice was skillful, his construction of the second and third personae undermined his performance of the first persona. Essentially, a justice who claimed neutrality was appealing to an implied audience that ignored minority rights and irrationally feared a small minority group. Meanwhile, the justice constructed sexual minorities as criminals or other poorly regarded individuals.Download the article from SSRN at the link.