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12/18/2020

Ed Whelan on Eric Segall on Ed Purcell on Justice Scalia
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Scalia's Legacy as Irony: Reviewing Ed Purcell's Antonin Scalia and American Constitutionalism.  From the introduction:

Justice Scalia used to tour the United States arguing that the "Constitution is Dead, Dead, Dead." He detested what he saw as the judicial lawlessness of the Warren/Burger Court's eras and he claimed to follow a different path devoted to the study of text and history, not the imposition of value judgments by a "committee of nine lawyers." 

Yet, when Scalia's thirty years of jurisprudence are examined carefully without the trappings of the late Justices' barbs, quips, and talking points, it turns out, as Professor Ed Purcell shows in his new book, "Antonin Scalia and American Constitutionalism," that Scalia's legacy demonstrates that he could no more avoid living constitutionalism than any other Justice. For all his unyielding rhetoric about originalism as the only true method of constitutional interpretation, Scalia's career shows that pluralistic decision-making was the true hallmark of his judicial method.

This is not news to most academics who have studied Scalia, but Purcell's book is a wonderfully comprehensive and devastating critique of Scalia the Justice. In time, I hope this book play a major role in dispelling the myths surrounding Justice Scalia so that we can stop pretending this man was a principled or even honest Supreme Court Justice.

At NRO Bench Memos, Ed Whelan has a response: Law Prof Eric Segall Damns Scalia Book with Ardent Praise.  From the core of the argument:

Segall, I’ll note, is unlikely to have approached Purcell’s book skeptically. He has previously shown himself all too willing to attack Scalia by setting up and knocking down a bunch of straw men, and he sees the book as bolstering his preconception that Scalia was not “a principled or even honest Supreme Court Justice.”

I haven’t read Purcell’s book, so I can’t comment directly on it. I will note, though, that the two block quotes from it that Segall presents severely undermine his case that the book deserves praise.

1. Here’s the first block quote from Purcell (underlining added):

Scalia believed wholeheartedly in the death penalty, market economics, limited government, the centrality of religion, the right to possess firearms, and a broad set of values he considered ‘traditional.’ He was adamantly opposed to abortion, gay rights, affirmative action, and a right to assisted suicide. In his mind two truths were beyond question: His position on each of those issues was morally right, and on each of those issues the Constitution was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.

It’s extraordinary that Purcell would claim to know what Scalia “believed wholeheartedly,” what he “adamantly opposed,” and what “truths” he regarded as “beyond question.” I’d be curious to see the evidence that Purcell presents for these claims. But I strongly suspect that he’s just reasoning backwards from his assertion that “on each of those issues the Constitution was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.”

But what does this assertion even mean?  I count nine “issues” on which Purcell claims that Scalia concluded that the Constitution “was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.” (I read the four issues in the second sentence as spelling out the “broad set of values” in the first.) On seven of these nine issues—“the death penalty, market economics, limited government, the centrality of religion [whatever that means], … abortion, gay rights, … and a right to assisted suicide”—Scalia clearly did not believe that the Constitution dictated his putative “moral position.” On each of those matters, he believed that the Constitution left to the legislative processes broad leeway to adopt different positions and to revise those positions over time.

Agreed, and I'd add that two of the issues listed in the block quote are especially odd as evidence of Scalia's conflation of personal morality and constitutionalism.  As to "market economics," Scalia emphatically rejected the broad claim of constitutional economic rights under the Ninth and Fourteenth Amendments, as pressed by Scalia's contemporary Bernard Siegan (of the University of San Diego Law School) and today by scholars such as Randy Barnett.   So if Scalia had a moral/policy preference for market economics (and I think he did), his rejection of the Siegan-Barnett position shows his ability to separate his moral/policy preferences from his constitutionalism.  That is, it's evidence of the exact opposite of the position Segall and Purcell are advancing.

Religion under the free exercise clause is similar.  One of Scalia's best known majority opinions is Employment Division v. Smith, holding that a neutral generally applicable law that incidentally prohibits a religious practice does not violate the free exercise clause.  Scalia believed that legislatures should provide (and indeed were under a moral duty to provide) exceptions from general laws for religious practices where that was consistent with public order. (I heard him say so on several occasions, sometimes colorfully).  But he did not find that to be a constitutional duty.  Again, the example proves the opposite of the Segall-Purcell contention.

Like Whelan, I haven't read the book, and it no doubt has some responses to these points.  But in any event the simplistic version -- that Scalia just voted his policy preferences -- seems overstated.