Ask the author: Antonin Scalia – “The Justice of Contradictions”

The following is a series of questions posed by Ronald Collins to Richard L. Hasen on the occasion of the publication of his book “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption” (Yale University Press, 2018, pp. 226).

Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine School of Law. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law.

Welcome, Rick, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.

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Question: You use the word “contradictions” in your title. What do you mean by that?

Hasen: Thanks to you and SCOTUSblog for this opportunity to talk about my new book, and for your great (but tough!) questions.

Justice Antonin Scalia was a jumble of contradictions. He said he had come up with jurisprudential theories to decide constitutional and statutory cases in ways that would increase the legitimacy of the Supreme Court, but his response to other justices who declined to follow his theories helped to delegitimize the court; he claimed these justices were acting as super-legislators and not judges. He said he wanted more civility in society and the law, but he used language in his opinions attacking other justices that was unprecedented in its nastiness. He was a Harvard law graduate who railed against Ivy League elites. There are many more examples of his contradictions in the book.

Question: In your subtitle you use the word “politics.” Why in a book about a judge and judging did you feel it necessary to use that word?

Hasen: In the Supreme Court’s hardest constitutional and statutory cases, there’s no escaping the fact that each justice’s values (what we might call each justice’s “politics”) help determine votes. Indeed, a far better predictor of a justice’s vote is the justice’s ideology, rather than whether a justice uses a methodology like originalism or not to decide a case (think of Scalia and Justice John Paul Stevens in the District of Columbia v. Heller Second Amendment case). As I show in the book, Scalia and Justice Samuel Alito often voted together even though Alito did not agree with either originalism or textualism. Today, with all the liberals on the court being appointed by Democratic presidents and all the conservatives being appointed by Republican presidents, that ideological divide has now become a party divide as well. But I don’t mean to suggest that the justices are partisans. They are chosen by partisans because of their ideology.

Question: “Justice Scalia challenged the established legal order, disrupting the Supreme Court like the Speaker of the House Newt Gingrich disrupted the House of Representatives in 1994 and Donald Trump disrupted the presidency in 2016.” Those are your words – strong words. Tell us what prompted you to couch it that way, replete with analogies to Gingrich and Trump.

Hasen: Scalia came to the Supreme Court with a radically different way of deciding cases and with a radically different style as a public intellectual. He changed the way people talked about how to read a statute or a constitutional provision. He was in your face if you disagreed with him, whether you were a lawyer at the Supreme Court lectern, a fellow justice or a college student asking a question at one of the many public events in which Scalia participated to sell his jurisprudential theories.

And it wasn’t just that he tried to shake things up, moving oral argument from a sleepy affair to one in which Chief Justice John Roberts has to play traffic cop to deal with the barrage of questions. Scalia, like Gingrich and Trump, sold himself as a populist, anti-elitist, nationalist fighter for the little guy. There are lots of parallels here on both substance and style.

Question: Many feel that Scalia’s 2008 majority opinion in Heller was his finest moment.

In his dissent from denial of cert earlier this year in Silvester v. Becerra, a right-to-bear-arms case, Justice Clarence Thomas declared: “The Second Amendment is a disfavored right in this Court.” No one else joined that dissent, not even Justices Alito or Neil Gorsuch.

Do you think Scalia would have signed onto Thomas’ dissent? Why or why not?

Hasen: This is a fascinating question, because it calls into question how seriously to take that part of Scalia’s Heller opinion stating: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Perhaps that sentence was the price to be paid by Scalia to get the vote of a justice like Anthony Kennedy. Heller said there had to be balancing of rights and state interests, but the opinion left open how that balance was to be struck. I would not have been surprised if Scalia would have signed Thomas’ statement in Silvester calling the Second Amendment a second-class right at the Supreme Court.

One other point about Heller: Although Scalia pointed to it as his proudest originalist moment on the court, those on both the left and right have argued that the opinion — with its reliance on things aside from original public meaning — was an example of Scalia practicing the “living constitutionalism” he said he abhorred.

Question: On the one hand you write: “By some measures Scalia was the most influential justice of the past two generations.”

On the other hand, you contend that in all likelihood Scalia “will not be universally admired as one of the great justices of the court.”

How do you reconcile those two statements?

Hasen: There are two common measures for what we think makes a justice “influential.” First, does the justice write a lot of majority opinions? Second, is the justice the “swing justice” who tips the scales in the most important 5-4 cases? By either measure, Scalia was not influential. He wrote fewer majority opinions than many other justices, and indeed aside from Heller it is hard to think of many landmark majority opinions he wrote outside the criminal procedure area. Second, Scalia was never the swing justice when he was on the court. In more recent years that was Justice Sandra Day O’Connor and then Kennedy.

And yet Scalia was incredibly influential by the sheer force of his writing and personality. He said he wrote for law students, especially in his dissents, to attract attention to his ideas. He had big ideas and wrote and spoke about them forcefully. And so he achieved a great deal of influence.

But he was also a polarizer, and he helped usher in an era in which we have divided our justices into teams. Scalia is deified by the right and vilified by the left, and Justice Ruth Bader Ginsburg is viewed in the opposite way. The reception of the “Scalia Speaks” and “Notorious RBG” books shows this move towards justices as team members and celebrities. It is hard to imagine Scalia and the other more publicly facing justices not being viewed through a partisan lens.

Question: Why would a conservative want to read your book?

Hasen: I try to present a nuanced picture of Scalia’s influence on the court that I think should be of interest to people of all ideological backgrounds. In some ways he made things better on the court, such as with his admonition to begin understanding the meaning of statutes by looking at the text of the statute. In other ways, as I’ve indicated, he made things worse. He disrupted the nature of the Supreme Court in ways that will likely reverberate for a long time, and anyone interested in his influence should want to read the book.

Question: When it came to constitutional interpretation, was Scalia an originalist or texualist or both?

Hasen: This is quite an interesting question. For constitutional interpretation, Scalia said he believed a constitutional provision should be interpreted in line with its original public meaning at the time of enactment. For statutory interpretation, in contrast, he said that statutes should be read in line with how a fair reader of the English language at the time of enactment would have understood the words.

These two approaches are similar but not identical. For example, consider the equal protection clause of the 14th Amendment. A pure textualist reading would ask what the words “equal protection” would have meant in the 19th century. And sometimes Scalia would just look at the text to understand how it applied, arguing, for example, against affirmative action for racial minorities. But at other times he looked not only at the words but at social context to consider how a provision was understood at the time, arguing, for example, that the equal protection clause did not protect against sex discrimination because no one at the time of ratification would have understood it that way. So this answer goes beyond the text of the equal protection clause to look at social practices and tradition for its meaning.

Scalia was criticized for not explaining why as a public-meaning originalist he rejected looking at social context at the time of ratification when it came to affirmative action. The Congress right after ratification passed laws benefiting newly freed slaves. As I show in the book Scalia was pushed repeatedly to explain why this history would be irrelevant under his theory of public-meaning originalism to the permissibility of affirmative action and never responded — sometimes deflecting such questions with a joke, other times ignoring the point altogether.

Question: I have two related questions.

(1) Justice Scalia, you note, “claimed to be an originalist in constitutional interpretation, but he did not consistently apply this principle.” Has any justice ever been entirely consistent?

(2) You also write that “[t]he notion that judges can use originalist methods to ‘find’ or ‘discover’ the law, rather than make it, has proven to be an illusion.” Might much the same be said of any theory of constitutional interpretation?

Hasen: To be clear, I don’t think that Scalia was more inconsistent or hypocritical than any other justice on the Supreme Court. The difference is that Scalia held himself up to a higher standard. He said he had the tools to decide cases neutrally and consistently, but he never met those high standards. Indeed, the greatest criticism of the justice from the right these days is that he was not Scalia enough.

I don’t believe any theory of constitutional interpretation can have all the answers. I think more humility and recognition that values play a role in the hard cases would be welcome.

Question: When Alito arrived on the court, some referred to him as “Scalito.” Is that a fair characterization? If not, how in your opinion does the judicial conservatism of Alito differ from that of Scalia? And is it a difference with a meaning?

Hasen: As I mentioned earlier, the conservatives on the court often vote together, whether they call themselves originalists (Scalia, Thomas) or not (Alito, Roberts). But Scalia and Alito were not clones, and there were some important differences. Alito more than once mocked Scalia’s originalism. In a case involving the constitutionality of a ban on violent video games, Alito at oral argument remarked, “Well, I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” In a Fourth Amendment case, Alito mockingly wrote of a “very tiny constable” hidden in a stagecoach in 1791 listening to conversation as a way of understanding the scope of the amendment. In First Amendment cases involving the potential for emotional harm from hateful speech, such as the Westboro Baptist Church case, Alito was far less libertarian about the First Amendment than Scalia.

Question: In 2013 Scalia told an interviewer that he wrote his dissents for law students. Can you elaborate on that and likewise say a few words about the impact of Scalia’s 2012 book, “Reading Law: The Interpretation of Legal Text,” which he co-authored with Bryan Garner?

Hasen: I’ve addressed Scalia’s writing of dissents above. His co-authored book, “Reading Law,” is a compilation of canons and rules (and explanations for rules) for interpreting statutes and constitutional provisions. It has already been cited many times, even at the Supreme Court, as a treatise on interpretation. I expect it will continue to be cited, although the early use of the treatise to try to get Scalia’s vote has ended.

The problem with the treatise is an old one recognized by Karl Llewellyn; it is that for every canon one might find a counter-canon. More broadly, as I argue in Chapter 2 of my book, Scalia’s textualist approach to statutory interpretation turns the question of deciphering statutory meaning into a word game, and sometimes this leads to very artificial and difficult-to-defend results. I suggest anyone who wishes to read “Reading Law” as gospel also pick up a copy of Judge Robert Katzmann’s book, “Judging Statutes,” the smartest answer so far to Scalia’s textualism. Katzmann writes:

[E]xcluding legislative history when interpreting ambiguous statutes is just as likely to expand a judge’s discretion as reduce it. When a statute is unambiguous, resort to legislative history is generally not necessary; in that circumstance, the inquiry ordinarily ends. But when the statute is ambiguous, barring legislative history leaves a judge only with words that could be interpreted in a variety of ways without contextual guidance as to what legislators may have thought. Lacking such guidance increases the probability that a judge will construe it in a manner that the legislators did not intend.

Question: One of the cases you discuss is Kansas v. Carr, a death-penalty case involving a gruesome murder. You write that “[w]hat is unusual is the length and detail of Scalia’s narrative account. Why,” you ask, did he “devote so much attention to the facts of the crime?”

(1) You offer two answers to that question. Can you share them with us?

(2) Can you then respond to this proposition: Law does not exist in a vacuum. It involves real people, in real circumstances. The law, lest it be oblivious to fairness, should take account of context.

Hasen: This was one of the last opinions Scalia wrote. It was an easy case legally, decided 8-1, and even Justice Sonia Sotomayor in her dissent did not really disagree with the majority’s answer to the constitutional questions in the case. (She argued instead that the Kansas Supreme Court could “overenforce” federal constitutional law.) The discussion of the law is brief, but the discussion of the facts is hard to read because of their gruesomeness. Scalia’s recitation of the facts is remarkable in that he or a clerk had to go back to the trial court record to get some details which were not given in the appellate briefs.

One theory for why Scalia wrote as he did is that he was a firm believer in the appropriateness of the death penalty, and anyone reading these facts is likely to be enraged and see why, if the penalty is ever appropriate, it is appropriate in this case.

But there’s another possible reason for Scalia’s attention. These murders were committed by two African-American brothers with all white victims. The case did not get much national attention at the time, and conservative writers including Michelle Malkin and David Horowitz said it showed the bias of the mainstream media. which would not touch a case with black perpetrators and white victims. Scalia said he listened to a lot of talk radio, and so maybe he heard about the case or read Malkin or Horowitz. I see his opinion in Carr as a possible way of giving voice to these victims.

Question: You have an insightful chapter on statutory interpretation told through the lens of Green v. Bock Laundry Machine Company, which stemmed from  a horrific accident in which the rotating drum of a towel dryer ripped off the arm of a 19-year-old who worked at a car wash.

Scalia concurred with the judgment rendered by Stevens for the majority. In his concurrence, he stated that the reading of the word “defendant” chosen by the court “quite obviously” does the “least violence” to the text of the federal rule of evidence that the court was interpreting.

Tell us a bit about why you find Scalia’s approach to statutory interpretation problematic in that case and more generally.

Hasen: I explained in my earlier answer why I find Scalia’s textualism to be wooden and artificial, one just as likely to lead to judges picking and choosing sources (in this case, dictionary definitions or canons of construction) to reach a result than one that adopts a more holistic approach to interpretation.

But the Bock Laundry example is meant to show that, like his approach to originalism in constitutional interpretation, Scalia’s textualist approach to statutory interpretation sometimes gave way to other values or interpretive methods. Sometimes he pulled a canon of construction out of his hat, which he himself called a “thumb on the scale” in interpretation that was not always justified. Other times, as in Bock Laundry, he decided not to follow the plain meaning of a statute when he found it “absurd.” I contrast his approach in Bock Laundry to his approach in the Obamacare case, King v. Burwell, where he was willing to let the 2000-page law go into a death spiral because of his relentless textualism in that case. Why bend the textualist rules in one case rather than the other? I think, as usual, in the big cases he (like the other justices) was driven to some results by his values.

Question: You write that Scalia “gave voice and logic to conservatives.” Is that a problem? If so, how does it differ in principle from Justice Louis Brandeis having given voice to progressives?

Hasen: It is absolutely not a problem. The problem is when conservatives pretend that this is not what Scalia did and instead that he was simply applying neutral principles of law. It is a problem to claim that anyone who does not follow Scalia’s methodology is not just wrong but acting illegitimately.

Question: When Scalia died, the owner of the ranch at which he was staying told the local press: “We discovered the judge in bed, a pillow over his head.” This statement prompted then-presidential-candidate Donald Trump and others to speculate that the justice had been murdered.

You write that Scalia might have appreciated the ambiguity of the “pillow over his head” phrase. Say a word or two about why you think that.

Hasen: The statement “pillow over his head” prompted conspiracy theories, which the family adamantly rejected. As I explain in the book, just after the justice’s death, in a video posted to Facebook, the conspiracy theorist behind the website Infowars, Alex Jones, called for a murder investigation: “I was the first to come out and say this should be a murder investigation, and they better not not do an autopsy… Then he’s found with a pillow over his face.” The presidential candidate Donald Trump, in an interview with radio host Michael Savage a few days later, agreed: “It’s a horrible topic, but they say they found a pillow on his face, which is a pretty unusual place to find a pillow.”

Savage called for an assassination investigation: “This is going to be bigger and bigger and bigger. We need the equivalent of a Warren Commission; we need an immediate autopsy before the body is disposed of.”

In response to the conspiracy claims, businessman John Poindexter, who made the original statement, quickly clarified that the pillow was between the headboard and the justice’s head. He told the Los Angeles Times that Scalia looked peaceful, “almost as if a model had been put in the bed.”

I could imagine Scalia explaining that if the pillow was being used to suffocate him, the natural statement of an English speaker would have been a “pillow over his face,” not “pillow over his head.” Careful reading of the statement, Scalia might have said, could have resolved the ambiguity.