Bench Memos

Law & the Courts

Richard Hasen’s Jumble of Confusions — A Postscript

Supreme Court Justice Antonin Scalia testifies before the House Judiciary Committee in 2010. (Kevin Lamarque/Reuters)

After I posted my three-part critique of law professor Richard Hasen’s book on Justice Scalia on Monday and Tuesday of last week, I was surprised and, yes, annoyed that, instead of responding to my critique, Hasen resorted to a campaign of retweeting cheap shots that others had leveled against me on Twitter. On Wednesday afternoon, for example, amidst criticism that I was racist for labeling as “thuggish” Justice Sotomayor’s flippant comment about bashing Justice Scalia with a baseball bat, Hasen found this gem worthy of retweeting:

You nailed it, Ed. Puerto Ricans are “thugs.” I’m sure most of your followers agree.

(By the way, a Google search of the phrase “Trump is a thug” yields some 57,400 results. That would suggest that the term is routinely applied to a person based on behavior, irrespective of race or ethnicity.)

On Friday, Hasen retweeted a pervasively tendentious attack on me by Joe Patrice of Above the Law and specifically quoted Patrice’s empty claim that most of my critiques are “wild reaches, … a jigsaw puzzle of nits and out-of-context quibbles.”

Just a reminder: My Part 1 post argued that Hasen’s three lead items in his list of Scalia’s supposed contradictions—the core thesis of his book—were incoherent and confused. My Part 2 post addressed Hasen’s large claim about the supposed conflict between Scalia’s King v. Burwell dissent and his concurring opinion in Green v. Bock Laundry (a claim presented across ten pages), and I faulted Hasen for failing to acknowledge, much less engage, the two paragraphs from Scalia’s King dissent that addressed his claim. It also addressed other of Hasen’s claims about Scalia’s textualism. In my Part 3 post, I provided other examples of defective arguments in Hasen’s book, including his upside-down claim that Scalia was “seeking to undermine common approaches to American jurisprudence with new and revamped theories of interpretation.”

The idea that those arguments of mine can be dismissed as “nits” or “quibbles” is not serious.

Hasen has now posted a response that labels my critique as “bad faith and nasty.” Various parts of his response quote tweets of mine and my own private exchange with him (an exchange, that is, that I assumed was private), and I will readily agree that I was harsh (but accurate) in some of those comments. But Hasen’s complaint operates as his excuse for refusing to “offer a point-by-point rebuttal” of my arguments.

Hasen contends that I have the modus operandi of a “bully.” I guess that’s why I offered to make Bench Memos available as a platform for his response. (I committed to post the text of his response verbatim, but would not agree to his request for an inflammatory title, as readers often assume that titles reflect the views of editors.) I guess that’s why I passed along to him, twice, my regrets that our exchange had gotten so unpleasant, along with my recognition that each of us sees the other as more in the wrong. (He did not reciprocate any regrets and instead unilaterally deemed our private exchange to be public.) I guess that’s why I alerted him, way back in November when I first saw the galley of his book, to a gross distortion (in time for him to make a partial fix).

Hasen offers two examples of my supposed “m.o.” I’ll address them very briefly.

I’ll start with his second example. Hasen contends that my Part 2 post fails to “present and critique [his] broader points about Scalia’s textualism.” But the three paragraphs in point 2 of my post do exactly that. Hasen now briefly contends that the two paragraphs in Scalia’s King dissent are “inapposite” to his argument. But Scalia in that dissent distinguishes a provision that “decrees an absurd result”—exactly what he found in Green v. Bock Laundry (“We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result”)—from the provision at issue in King. Again, my main point on this in my Part 2 post is that Hasen should have engaged what Scalia said in King.

In his first example, Hasen complains (with respect to point 4 of my Part 3 post) that I don’t “discuss the totality of the circumstances of [his] case for and against the question” whether Scalia “had anti-gay animus” and that I instead “make[] it appear that [Hasen’s] entire case hangs on a single phrase.” I’ll just say that I don’t think that’s a fair reading of what I wrote. I didn’t purport to address Hasen’s broader case and instead explicitly focused only on Hasen’s contention that Scalia’s dissent in Lawrence v. Texas (2003) was “full of language seen as strongly anti-gay.”

Hasen concludes with an observation that he asserts “says it all”—that I criticized Sotomayor’s “baseball bat” comment but not Justice Ginsburg’s statement that “sometimes I’d like to strangle” Scalia. I pointed out to him that I hadn’t recalled the Ginsburg comment (which was some pages away from the passage I was addressing) but that it was “less clear to me” that her comment could be characterized as “thuggish” because it was “arguably much more idiomatic” and that “bashing someone with a baseball bat seems a paradigm of thuggery.” On reflection, I would add that Ginsburg had a genuine friendship with Justice and Mrs. Scalia that Sotomayor did not have, and that Sotomayor made her comment in the grief-filled months following Scalia’s death.

But what’s really weird is that Hasen thinks I’m being soft on Ginsburg because she’s not Latina and because I have “pecuniary and other reasons not to alienate” her, as she wrote the foreword to Scalia Speaks (the collection of Justice Scalia’s speeches that I’ve co-edited). He claims that I “[g]ive the benefit of the doubt to [my] friends and attribute the most malevolent motives to [my] enemies.” I’m sure that Justice Ginsburg would be as bemused as I am to discover that we are “friends” (we don’t know each other at all and have never spoken) and that I’m being accused of being soft on her. Her foreword was a beautiful gift of friendship to Mrs. Scalia. I do not receive any royalties from sales of Scalia Speaks, and although I have a continued interest in its success, I don’t see how that gives me any incentive not to criticize Ginsburg when the occasion warrants, as I have in fact continued to do.

Hasen has spent the last six days avoiding engaging my critique while stoking attacks on me. His cries of “bad faith” and “nasty” are simply his excuse for continuing to do so.



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