Bench Memos

Law & the Courts

Law Prof Eric Segall Damns Scalia Book with Ardent Praise

Law professor Eric Segall has written a gushing review of a new book by law professor Edward Purcell titled Antonin Scalia and American Constitutionalism. According to Segall, Purcell’s book is “a wonderfully comprehensive and devastating critique of Scalia the Justice” and “shows … that Scalia’s legacy demonstrates that he could no more avoid living constitutionalism than any other Justice.”

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.

Under Scalia’s view, for example, state governments are free to abolish the death penalty, to regulate the economy, to provide welfare, to prohibit invocations at public events, to allow abortion up to the moment of birth, to redefine marriage to include same-sex couples, and to enact a right to assisted suicide. What Scalia objected to was the living-constitutionalist claim that the Constitution somehow required states to impose the progressive policy preference on most of these issues. (If that’s all that Purcell means by his difficult-to-decipher alternative claim that Scalia believed that the Constitution, “at a minimum, failed absolutely to support those who disagreed with him,” then his prose hardly deserves Segall’s praise for its supposed “laser-like precision.”)

As for the other two issues: I don’t know what it means to say that Scalia “believed wholeheartedly” in “the right to possess firearms.” But as a justice he swore to defend the Constitution, including the Second Amendment. It’s clear from Segall’s review that Purcell believes that District of Columbia v. Heller was wrongly decided. That’s too large a topic for me to address here. Suffice it to say that there are plenty of Second Amendment scholars who agree with Scalia’s opinion in that case.

On “affirmative action” (aka racial preferences): Segall asserts that “complete color-blindness” is “a non-textual, anti-historical judge-invented principle.” But as early as 1880—a mere twelve years after ratification of the Fourteenth Amendment—the Supreme Court in Strauder v. West Virginia read the Fourteenth Amendment as “declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” And of course the first Justice Harlan famously declared in his dissent in Plessy v. Ferguson in 1896: “Our constitution is color-blind.”

In any event, even if you think that Scalia was wrong on these two issues, the notion that Scalia was as much a living constitutionalist as any other justice is patently false.

2. In what Segall, damning with ardent praise, calls “one of Purcell’s best paragraphs,” Purcell writes:

[Scalia] was far more openly and overtly political than any of his predecessors. A good number of those predecessors had continued their political involvements in varying ways and degrees while on the Court, but none had pushed their political and partisan views into the public arena as freely, continuously, and emphatically as Scalia did. His countless writings, public speeches, and media appearances commonly lent support to the agenda of the political right, and together with his much heralded public work on behalf of the Federalist Society—the Republican Party’s acknowledged judicial and administrative employment agency—they made his personal political and social allegiances vividly apparent.

This entire paragraph seems to rest on Purcell’s same mistaken conflation of Scalia’s judicial philosophy with his putative “political and partisan views.” If you’re looking for a justice who was “openly and overtly political” to an unprecedented degree, perhaps you’d consider the justice who, in the midst of a presidential campaign, publicly said that she “can’t imagine what the country would be” if one of the contenders prevailed and who condemned that contender as “a faker” who “has no consistency about him” and “says whatever comes into his head at the moment.”