As the world now knows, Justice Antonin Scalia is a practitioner of the ancient Italian art of the confusing hand gesture. Recently, while in a cathedral in Boston, he responded to protesters by raising the five fingers of his right hand in front of his chin and, according to a reporter, saying, “Vaffanculo.”
A worldwide debate at once began over whether his gesture meant “No,” “I don’t give a damn” or “I’ll get you, my pretty, and your little dog, too!” Scalia responded with a quotation from Luigi Barzini’s The Italians that he claimed proved the gesture had no profane content.
We should pay close attention to what Scalia says about hand movements. It can now be revealed that the Justice has, over the years, compiled his own secret list of gestures drawn from Sicilian street etiquette but expressing subtle jurisprudential points.
Sources within the court (who cannot be named because they would immediately be subject to the hand gesture of the closed fist with outstretched thumb pointing toward the door) have provided a partial draft of Justice Scalia’s unpublished work, Italian Hand Gestures for American Jurists. It is published here in the hope that understanding the Justice’s seemingly random gestures on the bench will help advocates sharpen their arguments and lead to better representation of their clients. The gestures include:
1. Both hands made into fists, with right and left thumbs jammed into respective ears. “Counselor, I’m not listening to any of your stupid arguments.”
2. Right hand held flat and parallel to floor, slowly drawn across neck at larynx level. “The request for a stay of execution will be denied.”
3. Index finger of right hand pointing directly into open mouth. “Tell me again why there’s a constitutional problem with force-feeding prisoners at Camp X-Ray?
4. Right hand held palm outward, with fingers spread and pointed up. “Talk all you want, I’ve already got five votes.”
5. Right hand held loosely next to face, holding $5 bill out toward Chief Justice Roberts. “Hey, sonny, run down to Starbuck’s and get me a latte, willya?”
6. Right hand, with fingers in a straight line above opposed thumb, then opened and closed rapidly over and over. “That guy Breyer just won’t shut up, will he?”
7. Right and left hands in fists, loosely clinched together above head. “Who’s the smartest Justice, baby?”
8. Right and left hands held together in front of chest, mimicking unusual secret handshake. “Didn’t I see you at the Federalist Society smoker last night?”
9. Both hands held slightly ahead of the chest, fingers together, facing outward. “Put down the shotgun, Cheney, and let’s talk about it.”
10. Right hand held upward in a fist, with only middle finger extended. “I don’t care what it says on the brief. You’re no friend of this Court.”
Obviously, this list is far from exhaustive, and further study is needed. However, veteran Court-watchers say that Supreme Court litigators should not under any circumstances follow the Justice’s lead. It is probably a violation of Court rules, and certainly poor advocacy, to respond to any member of the Court with a hand gesture. If you must react to something a member of the Court has said, the proper response is, “Thank you, Your Honor.” The nonverbal meaning of this phrase is the same as Scalia’s gesture No. 10, spelled out above.
