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04/07/2018

More Scalia Commentary
Michael Ramsey

At Liberty Law Blog, John McGinnis responds to this post by Calvin TerBeek: Justice Scalia’s Conservatism Does Not Detract from His Originalism.  From the introduction:

The ideas of Justice Scalia remain at the center of constitutional discourse even after his death. This jurisprudential afterlife is unusual: with rare exceptions, justices who leave or retire disappear from intellectual and legal discourse without a trace. Most held the legal world in thrall because of their powerful office, not their distinctive voice.

Justice Scalia did not just cast votes, but advanced and refined an idea—originalism—that survives his demise. Not surprisingly, those who do not like this idea are not very happy about the Justice’s enduring influence.   For instance, a recent book [by Richard Hasen] tries to take him down, and in turn has been heavily criticized [by Ed Whelan].

Another effort at downgrading Justice Scalia’s legal contribution claims that only recently have those praising Justice Scalia framed his importance in terms of his jurisprudential stances.  It argues that earlier in his career he was seen mainly by his admirers as a movement conservative. The implication is that his ideas are largely a reflection of that movement and should not have much resonance outside it.

What was offered as Exhibit A in support of this view is a short essay I wrote for National Review back in 1996, arguing that Scalia would be a good presidential candidate in 2000. (This piece does not appear to be available online but I am happy to e-mail a PDF copy to whoever is interested).  I contended that Scalia was an articulate conservative who united both the social and economic strands of the right—a welcome change from Bob Dole, the Republican standard bearer in 1996, who was neither articulate nor conservative, but just a generic Republican leader.

At The American Prospect, Simon Lazarus reviews Richard Hasen's book on Scalia:  The Scalia Problem: It Wasn’t Originalism or Textualism -- It Was Trumpism.  From the core discussion of the book:

As its title suggests, the book details what Hasen—tactfully—terms his subject’s “contradictions.” Scalia never consistently owned up to which of the very different versions of his interpretive lodestars he subscribed. Notoriously, he picked and chose among competing theories, and, indeed, ignored or violated outright his basic originalist/textualist canon when convenient for justifying desirable—usually conservative—results.

For progressives, it is critical to get their arms around this history—but not merely to mock their late nemesis. The real challenge is to understand why Scalia’s catechism has won the broad influence it has had, both in legal circles and especially in politics. Without taking on that inquiry, progressives have little hope of countering the agendas that have, for decades, driven conservatives to beaver away, as Linda Greenhouse recently wrote, at weaponizing the federal judiciary. In this fateful struggle, conservatives have registered intensity, smarts, and impact that progressives have rarely matched.

Hasen shows how Scalia chronically finessed such questions as whether court decisions should be guided by broadly worded constitutional text, or whether “majestic” phrases should be narrowly construed to mirror the societal practices contemporaneous with their adoption. To take just one of many examples, Scalia often insisted that the 14th Amendment’s guarantee of “equal protection of the laws” outlawed only discrimination based on race, but not gender, let alone sexual orientation. He bypassed the expansive constitutional text on the grounds that its framers were actually preoccupied with eliminating only state-sponsored racial discrimination against African American former slaves.

Conversely, however, when the constitutionality of affirmative action came up, Scalia executed a 180. He ignored (refusing even to discuss with his clerks) the overwhelming evidence that such an actual-intent approach would validate affirmative action measures benefiting racial minorities, despite the fact that the same Congress that passed the 14th Amendment also enacted express racial preferences to help former slaves adjust to their new freedom.

Surprisingly, Hasen insists that Scalia’s inconsistencies do not reflect bad faith: He writes that the justice sincerely “envisioned judges using neutral, language-based tools of interpretation.” He was no “less principled or more result-oriented” nor “more driven by ideology than other justices.” Indeed, the author suggests, Scalia may have been unfairly singled out for heightened criticism because he “proclaimed himself as following a higher standard,” one that “neither he nor the other justices could meet.”

Indeed, it is that self-imposed “higher standard” which Hasen seems intent on principally blaming for the blotches that mar the record of this “incredibl[y] gifted” jurist. Hasen’s target, to which he devotes two and a half of his eight chapters, is the “language-based tools of interpretation” on which Scalia staked his career—originalism and textualism. “The gap between Scalia’s stated approach and his practice in deciding real cases,” Hasen writes, revealed not so much the justice’s own faults as “the difficulty of using [such methodological approaches] to limit judicial discretion.” “The notion,” he adds, “that judges can use originalist [or textualist] methods to ‘find’ or ‘discover’ the law rather than make it, has proven to be an illusion.”

But the review does not endorse this approach, despite the "progressive" orientation:

As a matter of common sense, originalism and textualism—in principle and sensibly understood—cannot be dismissed as bunk. What Hasen seems to favor (and what Scalia’s nemesis, Judge Richard Posner, characterizes as “pragmatic” jurisprudence)—essentially, situation-specific balancing of multiple variables—may work in academic debates about how judges in fact make decisions. But this play-it-by-ear approach will not wash as jurisprudence, politically or philosophically. Judges, certainly life-tenured federal judges, can justify their immense power only by assuring litigants and the electorate that they make earnest, good faith efforts to determine and apply applicable law. Fairly reading the relevant text and its framers’ original understanding is an essential starting point—though, of course, rarely the endpoint—for that exercise.

And in conclusion:

In response, progressives should downplay sparring over abstract methodologies, and instead trumpet the often compelling case that justice and the law, as written and originally understood, are on the progressive side.

(Via How Appealing).

Finally (via Legal Theory Blog), Professor Hasen has posted Keynote Address: Judging the Political and Political Judging: Justice Scalia as Case Study (Chicago-Kent Law Review, 2018, forthcoming) on SSRN.  Here is the abstract:

This Address builds upon ideas first presented in Richard L. Hasen, After Scalia: The Future of United States Election Law, 17 AMERIKA HŌ 1 (Koji Higashikawa trans., 2017) (Japan), and RICHARD L. HASEN, THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION (2018). It is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. 

It considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance, on the one hand, to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. In this context, I argue that the defects in the political process he sometimes flagged appeared to do little work, and that his decisions are better understood by his ideological commitments to what Chicago-Kent Professor Steven Heyman calls “conservative libertarianism.”

Part II describes Justice Scalia’s contradictory approaches on questions of self-dealing and incumbency. Part III argues that, the contradictions lined up with the Justice’s ideological and partisan commitments, and that this is hardly unique to Justice Scalia. Finally, Part IV offers three lessons to be learned from this case study for the interaction of the Court, the political branches, and election law.