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A Justice—or a Court—of Contradictions?

I really wanted to like and learn from Richard Hasen’s The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, a book seemingly related to my interest in logical consistency and legal conservatism. But unfortunately, in this book I found little to like and even less to learn.

Although Hasen provides an accessible and at times compelling critique of the inconsistencies in Justice Scalia’s character and jurisprudence, Hasen’s analysis is mired by a significant blind-spot: He does not consider whether Justice Scalia is any more inconsistent than his colleagues. As a result, the book reads more like a polemical diatribe against Justice Scalia than a thoughtful examination of his judicial legacy and the value of consistency as a judicial virtue. Hasen’s focus on Justice Scalia as the justice of contradictions is particularly inapt, given Scalia’s expressed commitment to the Aristotelian notion that “[c]onsistency is the very foundation of the rule of law.”

After reading the book’s 178 pages, the attentive reader may find that he has learned more about Hasen’s own inconsistencies than those of his object.

The Structure of the Book

The book is separated into eight chapters, each exploring a feature of Justice Scalia’s allegedly contradictory jurisprudence. Three chapters are dedicated to Justice Scalia’s interpretive theories. Another three chapters are dedicated to Justice Scalia’s personal character. And two are dedicated to Justice Scalia’s judicial politics.

These eight chapters boil down to three simple propositions: (1) whenever Justice Scalia promoted something conservative, that is a mark of Justice Scalia’s contradictions, (2) whenever other justices promoted something conservative, that is also a mark of Justice Scalia’s contradictions, and (3) whenever liberal justices expressed themselves in a distasteful way, that is, yet again, a mark of Justice Scalia’s contradictions.

If you keep these three propositions in mind, the book becomes stunningly clear and stunningly shallow, as discussed below.

Justice Scalia’s “Contradictory” Interpretive Theories

Chapter Two argues that Scalia’s approach to statutory textualism often produces results that conflict with the obvious purposes of the law in question. In this chapter, Hasen focuses on how Scalia influenced other jurists, most notably Justice Gorsuch, who has taken “up Scalia’s textualist mantle.” The basic point of this chapter is that Scalia’s textualism has led the federal judiciary to produce “nutty outcomes.”

All of Hasen’s examples of “nutty outcomes” are conveniently on the conservative side of the spectrum. But Hasen does not consider how Scalia’s textualism could lead to progressive outcomes, such as how Justice Gorsuch used Scalia’s textualism in Bostock v. Clayton County to extend Title VII to include discrimination on the basis of sexual orientation. After reading this chapter, one is left wondering whether, if Hasen had written the book after Bostock, he would have counted Bostock as a “nutty outcome” produced by “a wooden textualist analysis.” Given the ideological slant of Hasen’s analysis, my guess is that he would not.

Chapter Three attacks another core feature of Justice Scalia’s jurisprudence, his constitutional originalism. Here, Hasen focuses on how Justice Scalia selectively invoked originalism when it was politically convenient to do so, and how Scalia failed to reconcile the tension between stare decisis and originalism. These are valid criticisms, but Hasen is not sufficiently attentive to the fact that Scalia tried to resolve the originalism-precedent puzzle through his “faint-hearted” originalism. As a justice working in the realm of praxis, as opposed to a scholar operating in reams of law reviews, Scalia often inclined more toward the practical pull of precedent than toward the theoretical tug of originalism.

The chapter title, “From Faint-Hearted to Full-Throated,” suggests the opposite—i.e., that over Scalia’s 30-year tenure the originalist tug eventually overcame the precedential pull. Hasen’s characterization is somewhat defensible, given that Scalia openly proclaimed such a shift, but Hasen’s analysis would have benefited from clarifying that Scalia’s rhetorical shift away from faint-hearted originalism was not reflected in Scalia’s actual decision-making. If anything, Scalia became more accommodating toward stare decisis as compared to the general trajectory of the originalist movement.

Less defensible are Hasen’s numerous omissions and misrepresentations of the history of originalist thought. For example, Hasen declares that Scalia “refined and relentlessly promoted the originalist approach to constitutional interpretation.” In this discussion, it is strange that Hasen neglected to mention that—more than a decade before Scalia even became an originalist—originalism had been developing through the work of Judge Robert Bork and Professor Raoul Berger.

A more ideologically balanced account of Scalia’s contradictory legacy would note how—in all Scalia’s years as a government lawyer, law professor, and D.C. Circuit judge—Scalia did not publicly comment on originalism. It was not until a speech he gave in 1986, just two days before his Supreme Court nomination, that Scalia endorsed “public meaning” originalism (a speech that, as Bruce Murphy has pointed out, was unmistakably designed to distinguish Scalia from Judge Bork, another candidate high on the Reagan list).

While Hasen need not provide a detailed account of the inconsistencies of other justices in a book about Scalia, he must, at the very least, consider whether Scalia is any more inconsistent than his colleagues.

That the justice who “relentlessly promoted the originalist approach to constitutional interpretation” did not openly endorse originalism until the age of 50, and apparently did so for the principal purpose of a job promotion, are interesting inconsistencies in Scalia’s legacy. But none of this history appears in Hasen’s book. And that is likely because the only “contradictions” that interest Hasen are those that make Scalia appear to be a conservative activist. The Scalia that emerges from Hasen’s ideologically skewed account is, ironically, much more consistent than the actual Scalia.

Likewise, a more ideologically nuanced account of Scalia’s legacy would note how Scalia’s major contribution to originalism was not so much in creating and promoting the theory, but in moving it away from “original intent” and toward “public meaning”—a shift that paved the way for progressive uses of originalism. While Hasen does acknowledge that some progressives have recently appropriated originalism, he does not engage the extent to which this is part of Scalia’s legacy.

Hasen’s omission of this point is part of a larger problem in this chapter: When discussing Scalia’s originalist legacy, Hasen applies inconsistent criteria.

Consider how Hasen alleges that Justice Thomas’ rejection of stare decisis and support for “judicial engagement” amount to “conservative judicial activism.” Hasen finds Thomas’ approach to be “the logical conclusion of Scalia’s ideas” even though Scalia explicitly privileged precedent over originalism and made “judicial restraint” the centerpiece of his judicial philosophy. For Hasen, Justice Thomas’ departure from Justice Scalia’s originalism is the logical conclusion of Scalia’s ideas.

Contrast that with Hasen’s reasoning several pages later, when Hasen observes that there has been recent “public meaning” originalism scholarship interpreting “the meaning of ‘freedom’ and ‘liberty’ . . . at a very high level of generality,” so as to make plausible an “originalist case for same-sex marriage.” This approach to originalism, Hasen tells us, would have “Scalia turning in his grave.” In this context, then, an approach to originalism that Scalia specifically created (“public meaning” originalism, focusing on text instead of historical intentions) is represented as a derogation of Justice Scalia’s legacy. In other words, when originalists follow Justice Scalia’s “public meaning” originalism, that is not the logical conclusion of Scalia’s ideas.

The only ostensible reason that Hasen finds one to be the “logical conclusion of Scalia’s ideas,” and the other to be a violation of those ideas, is that the former produces something Hasen dislikes and the latter produces something Hasen likes. The consistency in question, then, has everything to do with Hasen and nothing to do with Scalia.

Chapter Six operates similarly in discussing how Scalia selectively applied judicial restraint and deferred to legislative bodies when he supported the substance of the issue in question. This is a fair point, but the astute reader will be left wondering if the liberal justices are any more consistent in their deployment of judicial restraint.

Consider a few representative inconsistencies in liberal views on judicial restraint. The liberal justices are eager to defer to public universities when it comes to preferring some racial groups over others in admissions policies, but not when it comes to granting religious groups access to a university’s generally available resources. Likewise, liberal justices defer to the executive when it comes to extending amnesty to illegal aliens, but not when it comes to repealing that same executive action. Liberal justices tend to favor exemptions from generally applicable laws for non-Christians but not to the same extent for Christians. There is no consistent principle here, other than that constitutional liberalism boils down to greater constitutional solicitude for “protected groups.”

None of this observation of liberal inconsistency appears in Hasen’s analysis. While Hasen need not provide a detailed account of the inconsistencies of other justices in a book about Scalia, he must, at the very least, consider whether Scalia is any more inconsistent than his colleagues if he wants to single out Scalia as “the Justice of contradictions.” Without consideration of this point, the only inconsistency in Scalia’s jurisprudence that crystallizes from these chapters is its inconsistency with Hasen’s political values.

Justice Scalia’s “Contradictory” Character

Chapters One, Four, and Eight explore how Justice Scalia’s inflammatory writing style and personality undermined his effort to restore the Court’s legitimacy as a distinctly legal institution. It is true that in oral argument Justice Scalia often seemed more interested in amusing the audience than in engaging the advocates. And his fiery dissents seemed more designed to galvanize law students than to guide lower courts. But Hasen deploys a tilted ideological metric in assessing Justice Scalia’s departures from judicial decorum.

In Chapter Four, for example, Hasen condemns Scalia for writing caustically and using a general “tone of outrageousness in public speaking.” When it comes to the liberal justices engaging in such conduct, however, Hasen refuses to condemn them. And not only does Hasen not criticize the liberal justices, but he often blames Scalia for their conduct.

Consider how, in discussing Justice Kagan’s dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (a dissent in which Kagan accused the Chief Justice’s majority opinion of deception), Hasen declares that Kagan was simply “borrow[ing] from Scalia.” And what ground does Hasen provide for this claim? Hasen declares “[i]t is hard to imagine Kagan, a very talented writer, writing so nasty a response had Scalia not paved the way.”

Hasen’s inconsistency is also on display when comparing “the deification and memeification of justices—Scalia by those on the right and Justice Ginsburg, now known as the ‘Notorious R.B.G’[,] . . . on the left.” Even at the surface level, this is a strained comparison, in that Scalia, though respected and admired by originalists, was never “deified and memeified,” at least not the way that Justice Ginsburg was through her Notorious R.B.G. moniker.

Once you look behind the surface, however, this comparison is not only strained but also revealing of Hasen’s inconsistencies. Hasen finds an inconsistency between Scalia’s decrying the Court’s politicization and Scalia’s tendency to wade into political affairs. Fair enough. But hold on a second. Hasen does not mention the inconsistency involved in Justice Ginsburg (“the face of Democratic feminism”) publicly embracing an affiliation with Notorious B.I.G. (a rapper who celebrated, among other things, pistol-whipping and killing a woman for infidelity). Talk about contradiction!

When we empower nine unelected, life-tenured lawyers to adjudicate the most mundane matters of local government, we are going to see inconsistencies.

Apparently, the fact that Ruth Bader Ginsburg and Christopher Wallace (A.K.A. Notorious B.I.G.) “were both born and bred in Brooklyn, New York” was enough of a similarity for the former to look past the latter’s views on domestic violence. One cannot help but wonder whether Hasen would object if Justice Scalia had embraced a moniker affiliating himself with a particular person who, like Scalia, was born and bred in Queens. (Come to think of it, Trumpia does have a certain ring to it.)

Hasen does briefly mention Ginsburg “break[ing] protocol” by “publicly oppos[ing] the election of Donald Trump in 2016.” But of course Hasen doesn’t quote her actual statements (including her pre-election proclamation that she “can’t imagine what this place would be . . . with Donald Trump as our president”). These nakedly partisan statements far exceed Scalia’s breaches of judicial decorum, but Hasen praises Ginsburg for apologizing and attributes her misstep to the Court’s “polarization”—which (you guessed it!) Hasen traces to Justice Scalia.

Justice Scalia’s “Contradictory” Judicial Politics

Chapters Five and Six detail how Scalia’s conservatism had a polarizing effect on the Court. These discussions would have benefitted from some consideration of where Justice Scalia fits within the history of the conservative movement (something I explored here). On three separate occasions, Hasen refers to Scalia and his jurisprudence as “deeply conservative.” At other times, Hasen refers to Scalia as “a conservative libertarian.” But Hasen does not bother to sort out the apparent inconsistency in calling someone “deeply conservative” and “libertarian.”

In chapter Six, Hasen suggests that Scalia may have consumed some right-leaning commentary and this may have influenced his opinions. Hasen alleges, for example, that in a death penalty case arising from the Wichita Massacre, Scalia’s inclusion of some of the case’s gruesome details (a case in which two black men brutally murdered and sexually tortured several white victims) may have been a result of “Scalia’s consumption of conservative media.” In particular, Hasen infers from Scalia’s opinion that he may have read articles by Michelle Malkin and David Horowitz complaining that “the massacre did not get sufficient attention in the mainstream media because the media felt it would be politically incorrect to cover violence perpetrated by African Americans against whites.” Although Justice Scalia’s opinion did not mention the massacre’s racial element, Hasen still finds that Scalia’s disclosure of the underlying facts suggests his political bias and even racial bigotry.

Contrast that with Hasen’s description of Justice Sotomayor’s dissent in Schuette v. Coalition to Defend Affirmative Action, a case holding that Michigan had the constitutional authority to ban affirmative action in its public universities. Schuette was about as easy a case as the Supreme Court ever gets, in that it is hard to imagine why states may not ban something by referendum that the Court has generally prohibited through constitutional interpretation. Nevertheless, Justices Sotomayor and Ginsburg dissented, and in her dissenting opinion, Justice Sotomayor injected some incendiary language about how “race matters,” an unmistakable challenge to Chief Justice Roberts’s famous statement from Parents Involved about how to overcome racial divisions. Justice Sotomayor lectured the Court (and particularly the Chief) on how “[r]ace matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes,” and “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts.”

While Hasen does fault Sotomayor for directly attacking Chief Justice Roberts in her Schuette opinion, Hasen does not fault her for making entirely irrelevant and unsubstantiated claims about “systemic racism” in a case about the “political process” doctrine. And to the extent Sotomayor is at fault for attacking Chief Justice Roberts, Hasen of course blames Scalia for that.

Indeed, in consecutive pages Hasen issues almost the exact same defense of Kagan and Sotomayor. As mentioned above, Hasen defends the nastiness in Kagan’s Bennett dissent on the ground that “[i]t is hard to imagine Kagan . . . writing so nasty a response had Scalia not paved the way.” On the very next page, Hasen uses almost identical language in defending the tone of Sotomayor’s Schuette dissent: “It is hard to imagine [Sotomayor] using the tone in this debate had it not been for Scalia’s example.”

Remember proposition three mentioned at the outset of this essay: Whenever liberal justices do something wrong, it is Scalia’s fault.

The Justice of Contradictions or the Court of Contradictions?

This is a book of missed opportunities. The book could have focused on the importance of judicial consistency. Such a book would have criticized various justices, both left and right alike, for their derogations from this important ingredient of the rule of law. Hasen’s book, however, discusses the other justices as background characters who stray from their judicial duties only due to Justice Scalia’s insurmountable power.

Likewise, the book could have explored Justice Scalia’s inconsistencies in a more ideologically nuanced way, so as to include more consideration of how his approaches to originalism, textualism, and judicial power have produced liberal results. Hasen could have written a much more compelling account of Scalia’s inconsistencies if Hasen were less tethered to his particular ideological agenda.

Finally, the book could have probed further and explored what is behind the contradictions within the Supreme Court as an institution. Instead of simply blaming Scalia for the Court’s inconsistencies, Hasen could have acknowledged that these inconsistencies are more a function of the peculiarities of our political system than the peculiarities of particular justices. When we empower nine unelected, life-tenured lawyers to adjudicate the most mundane matters of local government, including decisions by law enforcement, school boards, and public libraries, we are going to see the inconsistencies of a multicultural nation of 330 million people reflected in their decisions.

Such discussions would have contributed to our legal discourse and perhaps even lessened our own inconsistencies. I cannot say that this book accomplishes either feat.

Reader Discussion

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on August 10, 2020 at 11:19:26 am

The new Revolutionary Democrat Party doth have its "Fake Facts and Ideology Hacks."

They dominate the media, posing as journalists, and thrive in the academies of "higher learning" (sic) posing as scholars, especially as historians, political scientists and law professors. Their propaganda, whether written as news, essays or books, deceives the gullible and misleads the ignorant, and spoken as lectures their propaganda has wasted the unformed minds of entire generations of students.

It may be said nowadays of the vast majority of such "journalists" and "scholars" that they deploy the spoken and written word as tactical weapons so as to advance the new Revolutionary Democrat Party's political disinformation, personal defamation, cultural reformation, intellectual deconstruction and similar psychological operations purposes, PsyOps being vital to the Party's mission of economic and constitutional revolution.

The book so ably discredited by Professor Merriam would appear to be one such psychological operation.

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paladin
on August 10, 2020 at 15:10:48 pm

The most disappointment I felt at Justice Scalia was when he failed to join with Thomas's and Rehnquist's in Gonzales v. Raich (2005). A few of the more pertinent remarks:

"Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."

"If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

The overreach of the Commerce Clause represents one of the most dangerous centralizing tendencies of the Federal government, along with the Incorporation Doctrine of the 14th Amendment. Scalia did join the majority in the Lopez case--one of the only decisions to pull the brakes on this.

Perhaps this is an example of "the practical pull of precedent [over] the theoretical tug of originalism," but he missed an opportunity to lend his support in a case that also really mattered.

This was an excellent article. It convinced me not to waste any time reading this book!

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JTL
on August 11, 2020 at 13:07:14 pm

I can think of only one time where Justice Scalia contradicted The Constitution.
“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.”- Justice Scalia
Every son or daughter of a human person has been endowed by God with their inherent, unalienable Right to Life, Liberty, and The Pursuit of Happiness at the moment of their conception, when they were Created, equal in Dignity, while being complementary as a beloved son or daughter, which is not the same moment they came forth from their mother’s womb.
Abortion, like slavery, or identifying persons according to sexual desire/ inclination/orientation, objectifies the human person, by denying the essence of being in essence, a beloved son or daughter, brother or sister, husband or wife, father or mother. Human persons, are not of commerce, and our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be what God intended, is binding in both State and Federal Law.

Both John Courtney Murray and Justice Scalia were mistaken; there is no common ground to be found between being, in essence, a beloved son or daughter from the moment of conception, and denying the essence of being a beloved son or daughter from the moment of conception. Being, in essence, a beloved son or daughter, in both public, and private morality, does not depend upon whether one is existing inside or outside of our mother’s womb, or what state our mother is residing in.

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Nancy
on August 11, 2020 at 14:08:37 pm

I agree completely with the general principles you're articulating here. However Justice Scalia's statement went to the question of jurisdiction, and he's correct on that point. The Constitution does not delegate to the Federal government any authority to tell the States what laws concerning abortion they may or may not enact. That ALL he was saying.

The States that permit murder of unborn children are not therefore accountable to the Federal government. They ARE accountable to God.

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JTL
on August 11, 2020 at 14:43:00 pm

With all due respect, God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, and thus The Author Of our unalienable Right to Life, to Liberty, and to The Pursuit Of Happiness. The fact that our inherent unalienable Rights are unalienable means these Rights remain unalienable and cannot be relinquished, even if we, ourselves, desire to relinquish them, because these Rights are endowed to us from God, not from Caesar, John Locke, or King John.

Although it is true, that at the end of the Day, we are all, ultimately, accountable to Christ, The Just Judge, this does not change the fact that our Founding Fathers stated, unanimously, that our inherent unalienable Rights come from our Creator, God, with the capital G.

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Nancy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.