By Eric Segall
Justice Antonin Scalia was the most controversial judge of his generation. A superb writer and public speaker, he relentlessly urged judges to adopt a strict textual and historical approach to statutory and constitutional interpretation. His most famous judicial opinions were his virulent dissents where he often lambasted his own colleagues for imposing their personal values on the American people instead of adhering to the rule of law. He routinely toured the country ranting to his audiences of law students, lawyers, and law professors that the Constitution is “Dead, Dead, Dead!” Love him or hate, he was impossible to ignore.
Capturing Scalia’s legal contributions on and off the Court is no easy feat, but Professor Rick Hasen’s new book, “The Justice of Contradictions: Antonin Scalia and the Politics ofDisruption,” brilliantly tells the story of Scalia’s long career. I strongly recommend this book to anyone interested in the Supreme Court or constitutional law.
One disclaimer about this review. Those familiar with my own articles, op-eds, and blog posts know that I am a vocal and long-time critic of Justice Scalia. Like Hasen, I am also a progressive who bemoaned many of Scalia’s methods and opinions.
Hasen’s book is not a biography. It includes little about Scalia’s personal life or his non-legal interests. Instead, Hasen explores Scalia the Justice. It is a testament to the late Justice that a book length survey of his decisions and off-the-Court banter about the law could be so interesting and important. It is hard to imagine such a book about any other justice’s career being so successful.
Hasen acknowledges that to many on the left Scalia was an “unscrupulous foe” pretending to judge by politically neutral principles but far more often than not reaching conservative results. For many on the right, however, Scalia was a “hero, a rare principled Supreme Court Justice who established and applied neutral principles to the most difficult cases….” Although Hasen discusses Scalia the polarizer, the main theme of the book, reflected in the title, is that Scalia is best understood as a man, or maybe more accurately, a judge, of many contradictions.
Scalia said he was an originalist but often voted for non-originalist outcomes such as in affirmative action, takings, and federalism cases, among many others. Scalia sometimes followed precedent he did not like but also frequently voted to reverse important cases, and he never explained what drove his ideas about following precedent. Scalia wanted to “increase the legitimacy of judicial decision making yet his attacks on his opponents may have undermined it.” Although Scalia “was full of charm” and an “exemplar of personal collegiality among [the] Justices,” he “asserted his positions …with unassailable conviction and sharpness. The other side was not only wrong but grievously [wrong]. The other Justices were there to impose their values on society … and only he could be counted on to be neutral and never impose his values.”
Hasen explores Scalia’s opinions and votes on almost all the hot button constitutional issues of our day: abortion, gay rights, campaign finance reform, gun control, affirmative action, and the rights of criminal defendants. To Hasen’s credit, he presents Scalia’s opinions in enough detail, and with enough balance, to give those opinions a fair shake. For example, Hasen is one of the leading election law experts in the country, and vehemently opposes many of Scalia’s views on and votes concerning campaign finance reform. Yet, he gives Scalia’s position its, due such as when he summarizes Scalia’s dissent in the now overturned Austin v. Michigan Chamber of Commerce:
[Scalia] argued …that limiting how much any person or entity spends in elections counts as unconstitutional censorship. He argued that legislatures often pass campaign laws to protect incumbents. He maintained that an incumbent politician who says he welcomes full and fair debate is no more to be trusted than the entrenched monopolist who says he welcomes full and fair competition. He suggested that the reason [the state] regulated the spending of business corporations but not labor unions was because of the political power of labor unions…. Between 1990 and 2010 Scalia consistently argued that all limits on election spending violated the first amendment ….
Hasen generally (though there are exceptions) does not present his own critique of Scalia’s specific views. This is not to say, however, that he does not incisively point out the substantial internal contradictions in Scalia’s jurisprudence. For example, Hasen argues that although Scalia “was extremely protective of the speech and association rights of huge corporations and billionaires … he believed it was perfectly fine for states … to hire, fire, promote and demote employees just because of their partisan affiliation. If the Republican Governor of Illinois wanted to fire a state janitor because he was registered as a Democrat [the facts of an actual case], Scalia saw no first amendment violation.” Hasen also explores how Scalia refused to review challenges to obvious partisan gerrymandering but had no problem reviewing claims based on racial gerrymandering, and yet he also struck down voting protections for people of color and other minorities.
Hasen recounts that Scalia once told his biographer Joan Biskupic that it was not the rich and powerful whose kids would be hurt by affirmative action but the “Polish factory worker’s kid who was going to be out of a job.” However, as Hasen suggests, and many experts have argued, Scalia’s steadfast view that the Constitution requires complete color blindness is simply not supported by either the text or original understanding of the Constitution. When a liberal law clerk provided him with scholarly accounts concerning the original meaning of the Fourteenth Amendment, and how they supported the validity of affirmative action, Scalia never engaged the clerk in any discussion of those accounts, and not one of Scalia’s affirmative action opinions that year “contained even a syllable of originalist argument.”
Hasen does give Scalia credit for many positive attributes and decisions. “[F]ew could turn a phrase as [Scalia] could or so thoroughly point out the logical flaws in the other side’s arguments.” He was an “exceptionally effective writer.” Scalia was “remarkably pro-defendant, a fact often pointed to by his supporters as evidence of the Justice’s fair-mindedness and neutrality.” Scalia “made the other Supreme Court justices work harder to clarify their reasoning,” and he “was an American patriot who believed he was offering ideas to improve the American legal system and democracy. He changed the way judges think and talk about statutes.”
I have one quarrel with the book. Throughout much of his early career, Scalia advocated for clear easy to apply legal rules instead of flexible standards. His famous law review article, “The Rule of Law as a Law of Rules,” argued that predictability and consistency were essential to judicial decision-making. It was on this axis that he and Justice O’Connor battled on many occasions. Surprisingly, Hasen does not discuss this aspect of Scalia’s jurisprudence.
There is one major critique Hasen makes about Scalia’s career that is perhaps the most appropriate epilogue to Justice Scalia’s legacy. Although Scalia often talked the talk of value-neutral judging, when it comes to Supreme Court decision-making, there simply is no such thing. Hasen points out that “much of original understanding is in the eye of the beholder. In cases involving vaguely worded constitutional terms and deep ideological divisions, we should expect judicial decision making to be influenced more by ideology and values than methodology.”
The problem was not that Scalia was “more ideologically driven than his fellow Justices.” Rather, Scalia “held himself out as better than other justices because he applied allegedly neutral principles. He promised that his brand of originalism and textualism would free judges from imposing their views. At this point in history, the project appears to have failed.” Despite Scalia’s best efforts across the decades, the Constitution, in the hands of judges, all judges, is not “Dead, Dead, Dead,” but very much alive. That a judge as smart and erudite as Justice Scalia never accepted that fact is the greatest and saddest contradiction of his long career.