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04/06/2018

Ed Whelan on Richard Hasen on Justice Scalia
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Richard Hasen’s Jumble of Confusions — Parts 1, 2 & 3 (reviewing [harshly] Richard Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption).  Part 1 is here, part 2 here, and part 3 here.

He begins:

The title of this post is somewhat hyperbolic, but far less so than the title — The Justice of Contradictions — that law professor Richard L. Hasen has placed on his new book critiquing Justice Scalia. His critique, as I will illustrate in a small handful of posts, is badly flawed.

On the third of the three "contradictions" Professor Hasen identifies:

3. Scalia “was an ‘originalist’ who believed constitutional provisions should be interpreted in line with their public meaning at the time of enactment, except when he wasn’t. He sometimes followed what he considered to be errant precedent because the law was ‘settled,’ and at other times he simply ignored originalist analysis altogether.”

When Hasen asserts that Scalia “at other times [i.e., even in the absence of settled precedent] … simply ignored originalist analysis altogether,” I gather that he is referring to his own claim (made on at least two occasions later in the book) that, on the question of whether racial preferences comport with the Equal Protection Clause, Scalia “ignored evidence of special programs for newly freed slaves at the time of ratification” of the Fourteenth Amendment.” But Scalia agreed that remedies were appropriate for actual victims of racial discrimination. (See, for example, his separate opinions in Adarand Constructors, Inc. v. Pena (1995) (“Individuals who have been wronged by unlawful racial discrimination should be made whole”) and Richmond v. J.A. Croson Co. (1989) (“Nothing prevents Richmond from according a contracting preference to identified victims of discrimination”).) So it’s puzzling why Hasen thinks that “special programs for newly freed slaves” would somehow be relevant originalist evidence in favor of the constitutionality of racial preferences for those who haven’t been shown to have been victims of racial discrimination.

And from the third post:

I’m not going to exhaust the reader or myself by running through the remainder of Richard Hasen’s book. Instead, I’ll provide here some examples of defective arguments in the book. In providing these examples, I don’t mean to suggest that the book fails to offer any criticisms that fall within the broad bounds of reasonableness. But I think that the defects do illustrate the broader problem of the book’s pervasive one-sidedness and of Hasen’s practice of construing and depicting everything in the light least favorable to Justice Scalia. ...