Bench Memos

Law & the Courts

Vicious and Idiotic Anti-Scalia Tirade by Former Clerk

Harvard law professor Bruce Hay, a former (very liberal) law clerk to Justice Scalia, has penned an anti-Scalia tirade for Salon that is as vicious as it is idiotic. Repeating as little as I can of his vile rhetoric, I’ll limit myself to four points:

1. Mirroring assertions in its text, Hay’s piece is titled “I thought I could reason with Antonin Scalia: A more naïve young fool never drew breath,” and it’s subtitled “I clerked for Scalia, certain he prized reason. From our leather chairs, we never saw the lives his rulings gutted.”

The reader might imagine from these titles and from the similar assertions in text that Hay would contend that Scalia failed to engage Hay’s reasoning. But he never does. So far as I can tell, Hay’s real position is that Hay himself has, since his clerkship, abandoned his belief that reasoned decisionmaking ought to be central to Supreme Court rulings. Thus, he faults Scalia for opposing “judges who believe decency and compassion [rather than reason] are central to their jobs.”

In short, by his own account, it’s Hay, not Scalia, who abandoned reason.

2. Hay contends that Scalia “generally detested science” because it “threatened everything he believed in.” I’m not sure what Hay means by this silly claim, but I’m guessing it’s the usual scientistic (not scientific) assertion that science somehow resolves questions that are beyond the realm of science.

Let’s look at the two assertions that Hay presents in support of his claim.

a. Hay argues, first, that Scalia “refused to join a recent Supreme Court opinion about DNA testing because it presented the details of textbook molecular biology as fact.” That’s a rank distortion.

As Scalia explains in his three-sentence concurrence in the judgment in the case, he believed that the case could be resolved on the “expert” accounts that “the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.” In short, Scalia voted to decide the case based on “textbook molecular biology.”

For that reason, Scalia found it unnecessary for the majority opinion to go “into fine details of molecular biology” that he “was unable to affirm … on [his] own knowledge or even [his] own belief.”  From the majority opinion, here’s a representative proposition that Scalia regarded himself as unqualified to embrace: “The nucleotides on the DNA strand pair naturally with their counterparts, with the exception that RNA uses the nucleotide base uracil (U) instead of thymine (T).”

As one law professor has observed, Scalia’s refusal to pretend to a scientific understanding that he and his colleagues are unlikely to have might better be understood as intellectual humility, as respect for science. As another points out, his separate opinion can also be understood as involving the difficult and contested question of what qualifies as legislative fact. In no event does it support Hay’s baseless claim that Scalia detested science.

b. Hay’s second assertion is even feebler. Hay claims that Scalia believed that scientists “should be listened to only if they supported conservative causes,” but he makes no effort to support that wild claim. (He has a hyperlink in the second half of the sentence I’ve partly quoted, but it doesn’t link to anything.)

3. Hay argues that Scalia is somehow responsible for the decision of a transgender friend of Hay’s to abandon a brilliant career in physics in order to become a transgender activist. Hay’s basic claim here is that Scalia waged a “culture war” with “toxic rhetoric” that “has done so much to incite and legitimate fear of gender nonconformity and elevate it to the level of constitutional principle.”

What a stew of confusion.

For starters, far from engaging in a culture war, Scalia’s modest position was that the Supreme Court had no authority to intervene on either side of the culture wars, that these were matters to be worked out through the democratic processes. It’s the other side that elevated its own policy preferences “to the level of constitutional principle.” I’m also not aware that he ever wrote a word on “gender nonconformity.” (Hay cites nothing.)

4. Hay observes that “Scalia loved his clerks and helped them get dream jobs.” He clearly is including himself among those who ought to owe Scalia a large debt of gratitude.

If Hay weren’t a gutless coward, he would have made his foolish arguments while Scalia was still alive. And if he had any decency while Scalia’s family is still in deep mourning, he would have found a way to express his points that was much less vile.

For what it’s worth, while I knew Hay a bit some twenty years ago, I had completely forgotten that he was a law professor at Harvard. Perhaps that’s because of his meager scholarship. Or perhaps it’s because the only attention he seems to have received in recent years has been for his professional dysfunction.

I don’t know whether Hay was a “naïve young fool” when he clerked for Scalia. But from the evidence it would appear that he is now a bitter and washed-up older fool.

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