I’m easily distracted on the way to (what I aspire to be) deeper thoughts, and my most recent distraction has been italics. To be precise, Justice Scalia’s use of italics.  Take his recent opinion in Staub v. Proctor Hospital (one of my so-far-unsuccessful efforts to think deeper thoughts) where he uses italics to emphasize his point in several places. For example:

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended  by the supervisor to cause an adverse employment action,³ and if that act is a proximate cause of the ultimate employment action, then the employer is liable. . .  .

What’s the point of emphasizing “intended”?  If there is one (and with Justice Scalia’s prose I’m inclined to think there is), could it be just to remind the reader that intent is everything in discrimination law? Or maybe the purpose is to alert her to the callout for footnote 3 at the end of the clause. That footnote is worthy of flagging since its definition of intent flies in the face of much conventional wisdom about the meaning of intent under the antidiscrimination laws: “Under traditional tort law, ‘Intent’ . . . denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.’”  More on this down the road if I ever succeed in thinking those deeper thoughts.

But back to Scalia’s italics.  Staub’s not the only recent case where the Justice manifests italicitis.  There’s Wal-Mart v. Dukes, where his emphases are frequent, including at one point  attempting to shoot down the plaintiff’s class action claims in one sentence using double-barrel italics:

The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.

(Note also the use of quotations marks around “policy,” which cast real doubt on whether the practice at issue is fairly described as a policy in the first place).

So what’s going on? It’s not that Scalia is a fan of italics – at least as a matter of theory. He’s on record as critiquing others for writing briefs that read “like a high school girl’s dairy.”  But, of course, overuse is in the eye of the beholder. While pretty much every authority (including Scalia’s co-author Brian Garner’s Red Book and the venerable Chicago Manual of Style) agrees that italics should be used sparingly, presumably Scalia views his use as sparing. And it’s not like he’s the only justice to emphasize emphasis (I’m looking at you, Justice Kagan).

Some might suggest that Scalia’s use of italics peaks with his piques.  My research assistants note that he pushed the ital button more than 50 times in Lawrence v. Texas, including emphasizing whole clauses and words ranging from “sodomy in general” to “foreign nation” to “moral disapproval.”

But maybe there’s more method than outrage in his use of typefaces. Some recent research suggests that italics slow down readers, perhaps as much as 10%. Maybe that’s the point – in Staub, he wants readers to slow down to appreciate the potential change in the meaning of intent and in Wal-Mart, he wants the reader to savor the true absurdity of the plaintiffs’ position.

Whether the latter effort is successful is another question. Suppose he had written: 

The plaintiffs’ evidence convincingly establishes Wal-Mart’s policy of allowing discretion by local supervisors over employment matters. It is a uniform employment practice in favor of maximizing manager discretion. 

The denotation of the two statements is similar, but the connotations widely different. Maybe that’s the point.

Thanks to my RAs, Ezra Alter, Liana Nobile, Jinkal Pujara, and Kaitlyn Stone, who have much more to say about Scalian italicization, if anyone’s interested.

CAS