Bench Memos

Law & the Courts

Richard Hasen’s Jumble of Confusions — Part 1

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

The title of this post is somewhat hyperbolic, but far less so than the title — The Justice of Contradictions — that law professor Richard L. Hasen has placed on his new book critiquing Justice Scalia. His critique, as I will illustrate in a small handful of posts, is badly flawed.

Let’s start with the three lead items in Hasen’s list of Scalia’s supposed “contradictions” (pp. ix-x):

1. Scalia “wrote that his ideas could increase the legitimacy of judicial decisionmaking, yet his attacks on his opponent may have undermined it.” On page 7, Hasen similarly asserts: “For someone who cared so much about the legitimacy of the Court, much of what he said about the work of other justices seemed aimed at delegitimizing them as judges.”

There is no contradiction at all here. Scalia believed that the Court earns its legitimacy by soundly exercising reasoned judgment — and that it undermines its legitimacy by acting in an unprincipled manner. So it’s entirely consistent for him to discredit, or delegitimize, bad judging.

In others words, Hasen is wrong to assert that Scalia “cared so much about the legitimacy of the Court” irrespective how it behaved. He’s also highly tendentious (as he is throughout the book) in claiming that Scalia’s criticisms of “the work of other justices seemed aimed at delegitimizing them as judges.” It’s one thing to say that a judge’s reasoning is illegitimate; it’s quite another to say that the judge is illegitimate.

2. Scalia “offered jurisprudential theories to guide all cases, yet those doctrines were flexible enough to allow him, in most of the cases most important to him, to deliver opinions consistent with his ideology.”

By “ideology,” Hasen obviously means political ideology (rather than judicial philosophy). The elementary point that he misses is that “in most of the cases” that he would regard as “most important to” Scalia — from abortion to homosexuality to the death penalty — Scalia did not read the Constitution to impose his supposed preferences but instead held merely that the Constitution leaves those matters to the democratic processes for decision and revision.

Indeed, it’s Hasen’s critique that turns out to be so “flexible” as to be meaningless. Addressing Scalia’s position in Texas v. Johnson that the First Amendment forbids laws against flag-burning, Hasen declares (p. 48) that Scalia’s “vote in Johnson illustrated only that in his ideological hierarchy, even hateful, anti-patriotic expression was better than government censorship.” If that naked assertion qualifies as an explanation, every vote, one way or the other, could be so explained.

3. Scalia “was an ‘originalist’ who believed constitutional provisions should be interpreted in line with their public meaning at the time of enactment, except when he wasn’t. He sometimes followed what he considered to be errant precedent because the law was ‘settled,’ and at other times he simply ignored originalist analysis altogether.”

There is no “contradiction” between Scalia’s originalism and his respect for settled precedent, as Scalia’s stated methodology incorporates them both. As Scalia wrote in A Matter of Interpretation, “Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.” There is plenty of room to argue, as Justice Thomas does, that Scalia is too accepting of mistaken precedent that is settled, or to contend that the whole question of whether precedent is “settled” is too indeterminate to be meaningful. But it makes no sense to suggest, as Hasen does, that an interpretive methodology is somehow contradictory if it combines originalism with respect for settled precedent.

When Hasen asserts that Scalia “at other times [i.e., even in the absence of settled precedent] … simply ignored originalist analysis altogether,” I gather that he is referring to his own claim (made on at least two occasions later in the book) that, on the question of whether racial preferences comport with the Equal Protection Clause, Scalia “ignored evidence of special programs for newly freed slaves at the time of ratification” of the Fourteenth Amendment.” But Scalia agreed that remedies were appropriate for actual victims of racial discrimination. (See, for example, his separate opinions in Adarand Constructors, Inc. v. Pena (1995) (“Individuals who have been wronged by unlawful racial discrimination should be made whole”) and Richmond v. J.A. Croson Co. (1989) (“Nothing prevents Richmond from according a contracting preference to identified victims of discrimination”).) So it’s puzzling why Hasen thinks that “special programs for newly freed slaves” would somehow be relevant originalist evidence in favor of the constitutionality of racial preferences for those who haven’t been shown to have been victims of racial discrimination.

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