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10/25/2017

Podcast on "The Unexpected Scalia" (With my Further Comments)
Michael Ramsey

The Federalist Society has posted this podcast discussion of David Dorsen's new book The Unexpected Scalia: A Conservative Justice's Liberal Opinions Mr. Dorsen discusses the book with moderator/questioner Professor Alan Morrison (GW) and me.  Here is the introduction to the podcast:

Antonin Scalia was one of the most important, outspoken, and controversial Justices in the past century. His endorsements of originalism, which requires deciding cases as they would have been decided in 1789 [ed.: um, that would be, in accordance with the original public meaning of the text at the time of enactment], and textualism, which limits judges in what they could consider in interpreting text, caused major changes in the way the Supreme Court decides cases. He was a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions. In The Unexpected Scalia, a close friend of Justice Scalia David Dorsen explains the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century.

Author David Dorsen and former Scalia clerk Michael Ramsey joined us to discuss Mr. Dorsen's newest book.

I don't actually get to say too much in the podcast, but my basic take on the book is probably apparent.  It is, I think, both an important and annoying book.  But, to adapt the familiar snark in a more positive way, the important part is not annoying and the annoying part is not (very) important.

The important part is that Dorsen does a great job of documenting the extent to which Justice Scalia reached "liberal" (meaning politically left-of-center) results in his judicial opinions.  Most people are familiar with Scalia's vote in the flag-burning case (for the burners) and perhaps with a few of his major criminal procedure cases concerning the Fourth and Sixth Amendments (favoring the criminal defendants).  Dorsen's book shows that these are not outliers.  Of course Scalia reached many "conservative" (politically right-of-center) results too, but his liberal results are not just a few isolated cases -- they are a material part of his judicial output.  Two of my favorites, mentioned by Dorsen, are Hamdi v. Rumsfeld (in dissent, concluding that a U.S. citizen who fought with the Taliban could not be held in military custody as an enemy combatant) and Pacific Mutual Life Ins. Co. v. Haslip (in concurrence, concluding that the due process clause imposes no limit on awards of punitive damages).  To refute anyone who argues that Scalia simply voted the Republican Party's political preferences, there is now a single conclusive citation: Dorsen's book.  It's worth reading simply to get a full sense of Scalia's "unexpected" (and underappreciated) side.

The annoying part is that it's really two books in one, and the second book -- not advertised in the title -- is an underdeveloped and rather mean-spirited attack on originalism.  Only about half the book discusses Scalia's liberal opinions.  The other half discusses Scalia's "conservative opinions" or opinions not easily categorized.  Of these, it is generally extremely critical, and the criticism is woven around the theme that originalism is a fundamentally flawed methodology.  However, this criticism is not innovative or particularly deep -- it repeats some standard and to my mind not very persuasive arguments.  These include, for example, that originalism unrealistically claims certainty about text and history; that judges (especially Justice Scalia) do not get history right; and that originalism cannot deal with new situations.  All these arguments have been made before, and answered (whether  or not persuasively).  It's not clear that Dorsen adds anything to the debate -- and in any event, it's not clear what any of this is doing in a book supposedly about Scalia's liberal opinions.

But Dorsen's criticisms of originalism do raise an interesting point that he does not fully explore.  One may ask, why did Scalia reach so many liberal results?  Dorsen seems to believe that Scalia genuinely followed what Scalia thought was right in terms of text and history, regardless of what result that produced.  (Of course, this what most Scalia admirers think too).  There is, though, another view.  Perhaps Scalia was more of a libertarian than many people understood.  Perhaps Scalia actually liked his "liberal" results because they are libertarian results (protecting flag burning, protecting certain aspects of Fourth Amendment privacy). Perhaps, while Scalia did not like flag burners or criminals, he understood that their rights were also the rights of ordinary citizens who might run afoul of the government, with whom he sympathized.

This story would fit better with Dorsen's criticisms of originalism -- one could say that Scalia used originalism instrumentally to reach results he liked, including some that were liberal/libertarian.   [Professor Eric Segall takes this view, see here.] Interestingly, though, Dorsen -- who knew Scalia well and has no sympathy for originalism -- is not persuaded by this story.  He thinks Scalia was genuine, if misguided, in feeling compelled to reach results that he (Scalia) disliked.  Dorsen just thinks Scalia was often mistaken in his history and analysis.

That strikes me as implausible.  Scalia was a very smart person, as all agree.  And he had very strong opinions, judicially and politically.  No doubt he made mistakes.  But it seems unlikely that he consistently made mistakes forcing him to reach outcomes he disliked.  If there had been an overwhelming argument for an outcome he liked, I think he would often have found it.

In truth, the two themes of Dorsen's book are at war with each other.  If originalism at times impelled Scalia to liberal results he disliked, that suggests that originalism is a robust, constraining, coherent methodology.  If originalism is an incoherent, malleable and unmanageable methodology, that suggests that it could not have impelled so strong a personality as Justice Scalia to results he disliked.

I have my own views on which of Dorsen's themes is the right one, which I won't belabor here.  I'll conclude by saying that the book is well worth reading to contemplate this core question about Scalia and originalism, despite the book's flaws and in addition to its contribution in documenting Scalia's liberal opinions.