Bench Memos

Law & the Courts

Richard Hasen’s Jumble of Confusions — Part 2

The defects in Richard Hasen’s new book go far beyond his inability to support his title’s characterization of Justice Scalia as “The Justice of Contradictions.” Consider, for example, his first substantive chapter, which criticizes Scalia’s textualism.

1. Hasen’s primary claim is that Scalia’s dissent in the second Obamacare case, King v. Burwell (2015) — in which Scalia opined that the statutory phrase “Exchange established by the State” does not mean “Exchange established by the State or the Federal Government” — “was not mandated by his own methods of interpretation.” In support of his claim, Hasen spends some ten pages setting up Scalia’s brief separate opinion in Green v. Bock Laundry Machine Co. (1989). The question in that case was whether the term “defendant” in the then-existing version of Rule 609(a)(1) of the Federal Rules of Evidence applied to civil defendants as well as criminal defendants. In his separate opinion, Scalia observed that the text of Rule 609(a)(1), “if interpreted literally, produces an absurd, and perhaps unconstitutional, result,” and he concluded that, of the two alternatives available, interpreting “defendant” to mean “criminal defendant” would do “least violence to the text.”

Why, then, asks Hasen in a flurry of rhetorical questions, does Scalia adopt a “relentlessly literal reading” of “Exchange established by the State” in King v. Burwell? How is his position in King compatible with his position in Green? “[I]s it any less absurd to read a single clause [sic] in a twenty-seven-hundred-page law … to contain the seeds of [the law’s] own destruction?”

Amazingly, Hasen nowhere informs his trusting readers that Scalia actually supplies an answer. In his dissent in King v. Burwell, Scalia writes (citations omitted; emphasis added):

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” … The occurrence of a misprint may also be apparent because a provision decrees an absurd result — a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately — for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act — none at all — contradicts the limitation of tax credits to state Exchanges. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

How could Hasen pose his rhetorical questions yet not even acknowledge, much less engage, Scalia’s answer? I will happily exclude the damning possibility that Hasen deliberately hid Scalia’s answer from his readers. But the remaining alternative — that he was unaware of it or had forgotten about it — is damning in its own way. For what does it say that Hasen would spend ten pages positing a fundamental inconsistency between two of Scalia’s opinions yet not have carefully read one of those opinions? (I’m not contending that Hasen couldn’t muster some sort of response to the passage from Scalia’s King dissent quoted above; the damning point is that he didn’t.)

2. Hasen launches a broader attack on Scalia’s textualism, but his primary tools are epithets and distortions. He dismisses textualism as “word games” (his chapter’s title) and, in a classic false dichotomy, complains that Scalia saw statutory disputes “more like word puzzles to be solved than questions about human conflict and potential loss.” (So much for the possibility that judges, in a system of separated powers, might have an obligation to develop and apply neutral principles of interpretation.) Without bothering to provide a citation for a proposition that he can’t support, Hasen declares that Scalia “assures us” that “most legal questions can be solved with a grammar lesson.” (Only about one third of the canons in Scalia’s Reading Law treatise are grammar canons.) And, in a tactic he uses often in the book, he uncritically recites another leftist’s claim that Scalia’s textualism is a kind of “parlor game” that “intentionally eschews many of the contextual and cognitive cues that make language meaningful.”

In a particularly silly paragraph, Hasen thinks it somehow reflects unfavorably on Scalia that he “seemed less disturbed by the use of substantive canons generally than by particular substantive canons.” (Hasen’s emphasis.) But it’s entirely sensible that Scalia “took aim [only] at those [substantive canons] he considered especially indeterminate or unwise.” On what ground is he supposed to reject sound substantive canons? Yet, in a massive non sequitur and sideswipe, Hasen contends that Scalia’s “selective acceptance” of substantive canons relates to Hasen’s false claim (see points 2 and 3 of Part 1 post) that “in the important cases his conservative values trumped his jurisprudential commitments.”

Hasen implausibly contends that a textualist approach doesn’t constrain outcomes any more than “more eclectic theories of interpretation” (theories in which judges can resort to whatever tools get them the results they want). He observes that “in the most important cases, outcomes seem to be driven by ideology and a sense of fair results,” but he never contemplates the obvious explanation why that might be so: because most judges are not committed textualists.


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