Sunday, March 25, 2018

Scalia's Legacy: The Abiding Contradictions

      Antonin Scalia knew how to dish it out, but he wasn't so good at taking it. Thus, Supreme Court watchers can be sure that the late justice would have nothing good to say about the myth-puncturing critique of Scalia's career that law professor Richard Hasen dishes out in his new book The Justice of Contradictions.
      From his earliest days after joining the Court in 1986, Scalia proclaimed himself to be the apostle of judicial restraint by virtue of his two signature jurisprudential theories: textualism and originalism. In Scalia's telling, a scrupulously scientific focus on statutory text and original constitutional meaning leaves judges, even Supreme Court justices, nothing to do but apply established canons of construction to provide the correct answer to even the most baffling of legal issues.
      Hasen, professor of law and political science at the University of California-Irvine, rightly notes the "hubris" in Scalia's espousal of textualism and originalism. With a quarter-century of teaching law to his credit, Hasen proceeds to deflate Scalia's puffery by proving with clear and convincing evidence that Scalia was simply wrong in claiming for himself to have been consistent in applying his touted techniques.
      Going back to Scalia's earliest years on the Supreme Court, Hasen finds a Scalia opinion in a decision that opens by declaring that a "literal" interpretation of the statute at issue would lead to "an absurd, and perhaps unconstitutional, result." And so, in a concurring in the judgment opinion in Green v. Bock Laundry Machine Co. (1989),  he reads the word "defendant" in a federal evidentiary rule to include "civil plaintiffs" as well.
      Hasen contrasts this willingness to save the rule with Scalia's "relentlessly literal reading" of part of President Obama's Affordable Care Act a quarter-century later in his dissenting opinion in King v. Burwell (2015). The majority sensibly read an inartfully drafted provision to authorize subsidies for individuals buying health insurance not only from the exchanges "established by a state," but also those established by the federal government in states that refused to participate. Scalia wrote a scorching dissent that, had he prevailed, would have doomed Obamacare: an absurd result unless, like Scalia, one wanted the project to fail.
      Scalia's adventures in constitutional originalism were equally susceptible to flexible adaptation to his policy views in Hasen's telling. To establish an individual right to possession of firearms in District of Columbia v. Heller (2008), Scalia scrubbed the Second Amendment of the prefatory clause tying the "right to keep and bear arms" to "a well-regulated militia." He equally had to ignore the pre-Bill of Rights history of colonial and state laws limiting personal possession of firearms.
      Original meaning also carried no weight with Scalia in his interpretation of the Fourteenth Amendment's Equal Protection Clause to prohibit any preferential treatment for disadvantaged minorities in modern-day affirmative action policies. One of Scalia's law clerks noted to the justice that the post-Civil War Congress that approved the Fourteenth Amendment also enacted laws specifically aimed at benefiting the newly emancipated African Americans. The clerk suggested Scalia needed to explain the discrepancy, but the justice never did.
      More than any justice in history, Scalia engaged in sharp, personal criticism of those who disagreed with him, even his Supreme Court colleagues. Yet, as Hasen notes, Scalia "bristled" at criticism and was dismissive of critics. He famously rebuffed any re-examination of the blatant partisanship in Bush v. Gore (2000) with blunt advice: "Get over it," he said. Hasen also recounts Scalia's non-response to a query from the noted constitutional law scholar Jeffrey Rosen on how to reconcile his originalism with the school desegregation decision in Brown v. Board of Education (1954). "No theory is perfect," Scalia answered.
      Scalia may have accepted Brown, but he refused to bow to other constitutional landmarks. Five decades after the landmark privacy decision in Griswold v. Connecticut (1965), Scalia told an interviewer flatly that there is no right to privacy; Griswold, he said, was simply "wrong." Nor did Scalia ever accept that the Fourteenth Amendment applied to sex discrimination: the signature legacy of Ruth Bader Ginsburg's pre-Supreme Court career. And he fulminated in two of the landmark gay rights decisions against what he insisted on calling "the homosexual agenda" despite ignoring the suggestion from one of his law clerks that the phrasing was gratuitously incendiary.
      Hasen acknowledges that Scalia was "full of charm," well liked from all accounts by his fellow justices, even those on the opposite side such as Ginsburg. But his book reminds Court watchers of the wretched state of equal justice under law that Scalia would have left as his legacy had his views prevailed. Women would be powerless against official sex discrimination. Gay men and lesbians could be prosecuted for intimate relationships. Corporations could give unlimited amounts of money directly to candidates for federal office.
      Apart from his questionable jurisprudence, Hasen is perhaps most critical of Scalia for single-handedly coarsening judicial discourse at the Court and in law world generally. Sometimes, the sneering may have seemed light-hearted, as when Scalia accused the majority in King v. Burwell of "jiggery-pokery." But often his sneering had a sharper edge. Scalia's rhetoric served to make the Court "a more politicized, and perhaps more political, institution," Hasen writes. In the end, Hasen concludes, Scalia "helped to delegitimize the institution he was trying to save." His legacy, in short: an abiding contradiction.

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