Bench Memos

Law & the Courts

Richard Hasen’s Jumble of Confusions — Part 3

Supreme Court Justice Antonin Scalia ion Capitol Hill in 2010. (Kevin Lamarque/Reuters)

See Parts 1 and 2.

I’m not going to exhaust the reader or myself by running through the remainder of Richard Hasen’s book. Instead, I’ll provide here some examples of defective arguments in the book. In providing these examples, I don’t mean to suggest that the book fails to offer any criticisms that fall within the broad bounds of reasonableness. But I think that the defects do illustrate the broader problem of the book’s pervasive one-sidedness and of Hasen’s practice of construing and depicting everything in the light least favorable to Justice Scalia.

1. Hasen contends that Justice Scalia was “seeking to undermine common approaches to American jurisprudence with new and revamped theories of interpretation.” (P. x.) But unless we are to imagine that “American jurisprudence” began with the Warren Court, Hasen has things entirely backwards: Scalia was seeking to restore traditional methods of interpretation.

Indeed, Hasen himself ends up obliquely confirming my point. On statutory interpretation, he initially acknowledges that Scalia’s textualism “hearkens back to ‘formalist’ judicial philosophy of eighteenth-century legal thinkers such as William Blackstone.” He then makes the odd claims that “[t]extualism is different” from Blackstone’s formalism and that “Scalian formalism [which Hasen equates with textualism] puts its faith not in an immutable law of nature but in linguistic analysis.” (Pp. 26-27.) So the reader is supposed to take from this passage that Blackstone wasn’t a textualist but instead somehow derived the meaning of texts from the “immutable law of nature.” Yet ten pages later, Hasen refers to “Blackstone’s notion of a statutory truth that can be ‘found’ by sufficiently careful textual analysis.” (P. 37 (emphasis added).) (I will not maintain that Blackstone’s textualism is in all respects identical to Scalia’s, but, as Hasen appears to concede, the two are much closer than Blackstone’s is to purposivism or pragmatism or Hasen’s other “more eclectic theories of interpretation.”)

Similarly, on constitutional interpretation: Hasen cites a scholar, Johnathan O’Neill, who “traces originalist ideas back to the Founding.” O’Neill’s argument is far more robust than Hasen indicates: “Before the triumph of modern judicial power in the twentieth century, constitutional interpretation was understood as the ascertainment and application of the fixed, unchanging meaning of the written Constitution.” (Johnathan O’Neill, Originalism in American Law and Politics 12 (emphasis added); see also pp. 15-19 (explaining that the Federalist Papers and Marbury v. Madison reflected this same understanding).)

2. In support of his charge that Scalia’s “opinions and … public comments served to coarsen judicial discourse,” Hasen quotes Justice Sotomayor’s thuggish statement that “There are things he said on the bench where if I had a baseball bat, I might have used it.” (P. 66.) Hasen contends that Scalia “displayed an unparalleled level of nastiness and sarcasm,” but nothing Scalia ever said comes close to Sotomayor’s ugliness. (P. 67.) Hasen treats Sotomayor’s comment as having been made “jokingly,” yet if Scalia ever said that he might have used a baseball bat against one of his colleagues, I’m willing to bet that the reaction from Hasen and others would have been an uproar.

3. In support of his charge that Scalia had “a remarkable lack of self-awareness,” Hasen juxtaposes Scalia’s criticism of obscenity with his “gesture to a reporter” in 2006 “that some considered obscene.” (P. 71.) Never mind that the gesture was not in fact obscene but instead means (according to Italian Without Words) “What do I care?” (Hasen recounts that a Supreme Court spokesperson said the gesture was “meant to be dismissive” but leaves open the possibility that it was “[f]oul.”) Perhaps it’s Hasen who, in imagining himself a neutral arbiter of Scalia’s statements and actions, is the one who is displaying “a remarkable lack of self-awareness.”

4. Hasen posits that a liberal law clerk “helped tone down Justice Scalia’s harsh anti-gay rhetoric” in his dissent in United States v. Windsor (2013). (P. 86.) But it’s entirely Hasen’s speculation that Scalia’s draft dissent ever contained any such rhetoric.

Hasen contends that Scalia’s dissent in Lawrence v. Texas (2003) was “full of language seen as strongly anti-gay.” (P. 88 (emphasis added).) But there are many folks who seem to find it empowering to see things, or at least to feign to see things, that don’t exist. Here’s the supposedly deeply offensive passage from Lawrence:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

What Hasen and others overlook is that the adjective “so-called” operates to disparage the label “homosexual agenda.” So far from embracing that label, Scalia is distancing himself from it. (If Scalia had instead written that the justices in the majority had “joined forces with the so-called gay-rights movement,” his critics would surely have complained about that phrase.) In other words, while the phrase “the so-called homosexual agenda” may well have been ill-advised (if only because it gave some folks a predictable if weak excuse to rant), it’s reckless hyperbole to characterize it as “harsh anti-gay rhetoric.”

5. In recounting the hunting trip on which Scalia died, Hasen asserts that in the last dozen years of his life Scalia “had taken more than 250 privately funded trips.” (P. 8.) Hasen appears to be insinuating that Scalia accepted lots of gifts from wealthy businessmen. What he doesn’t disclose is that nearly all of Scalia’s trips were for speaking engagements and, if (as I expect) this 2009 financial-disclosure report is typical, the overwhelming majority were paid for by universities or bar associations. (Hasen also seems to count funding from public universities as private funding.)

6. Hasen remarks on the “unusual … length and detail of Scalia’s narrative account” in his eight-justice majority opinion in Kansas v. Carr (2016) of the gruesome massacre committed by the Carr brothers. Hasen speculates that “Scalia’s attention to the gruesome details might have been motivated by two factors.” “Most obviously,” as he puts it, “[b]y highlighting the depravity of the crimes, he apparently aimed to convince the reader that the death penalty was justified as retribution, or at least that the people in each state could decide it was justified.” (P. 149.) (I’d add that it was just seven months earlier that Justice Breyer, joined by Justice Ginsburg, called into question the constitutionality of the death penalty. I’d guess that Scalia also wanted to focus their attention on, and sign their names to, an unflinching account of the Carrs’ crimes.)

But Hasen can’t rest with that obvious explanation. Instead, and “admittedly more speculatively,” he posits that Scalia may have been trying to draw attention to a massacre that “[c]onservative commentators” had been arguing was underplayed because it involved “violence perpetrated by African Americans against whites.” You see, although Hasen notes that Scalia’s opinion “makes no mention of it, the Carr brothers were African American, and all of the victims of the [massacre] were white.”

It’s not just that Hasen is being “more speculative[]” here. It’s that he is being entirely speculative. Worse, his speculation insinuates that Scalia was race-baiting. And somehow his point that Scalia’s account didn’t mention the races of the Carrs or their victims didn’t make it into his discussion of the matter in at least one of the publicity interviews he has done for the book.

Editor’s Note: The first full paragraph of this post has been updated.

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