Vol. 29 No. 4 (April 2019) pp. 43-45THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION, by Richard L. Hasen. Yale University Press, 2018. 226pp. Hardcover $30.00 ISBN: 978-0-300-22864-9.
Reviewed by Christopher N. Krewson, Department of Politics & Government, Claremont Graduate University. Email: christopher.krewson@cgu.edu.
What is the legacy of the late Justice Antonin Scalia? According to Richard L. Hasen, many on the ideological right consider him “a rare principled Supreme Court justice who established and applied neutral principles to the most difficult cases.” To others on the left, he was “a justice who let his political, religious, and social conservatism drive him to results-oriented decisions” (p. ix). In his excellent book, THE JUSTICE OF CONTRADICTIONS, Hasen shows why Scalia may be remembered as a disrupter who employed a misleading and inconsistent approach to judicial decision making. Hasen’s primary thesis consists of two parts. First, he argues that Justice Scalia’s emphasis on neutral methods of interpretation masked what was mostly a results-oriented approach to judicial decision-making. Secondly, he contends that Scalia’s caustic behavior and opinion writing were counter-productive because they undermined his ability to enhance the legitimacy of judicial decision-making.
As explained in its preface, the book is not intended to be a biography of Justice Scalia; rather, it considers Scalia’s judicial tenure using a holistic and thematic approach. The purpose of the project is to give “a view from this point in time of [Justice Scalia’s] likely legacy.” In particular, the book explores “Scalia’s fundamental contradictions through an examination of his jurisprudential theories of textualism and originalism, his inimitable and often caustic tone in dealing with his adversaries both on and off the Court, and his jurisprudence in key areas of modern American Law” (pp. xi-xii). The portrayal of Justice Scalia is clearly a snapshot in time and to claim an understanding of his legacy at this point seems a fraught endeavor. Nevertheless, Hasen does a commendable job introducing the reader to the complexity and nuances of Antonin Scalia.
Hasen’s primary claim is that Justice Scalia acted inconsistently with his professed goal “to advocate a completely neutral approach that would lift the Court above the realm of politics” (p. xii). Of course, this deviation from a neutral approach had to do with Scalia’s methods of constitutional and statutory interpretation. Scalia’s overarching judicial philosophy was that judges should enforce the law as written in a way that respected democratic processes and limited judicial discretion. When interpreting law, Scalia purported to rely on democratically-approved text and its meaning as generally understood at the time it was enacted. This approach is referred to broadly as originalism.
Hasen argues that there are two problems with Scalia’s use of originalism. For one, the law is often indeterminate and yet Scalia proclaimed great certainty in his originalist interpretations of law, even in the most challenging cases. Beyond this, Scalia had no qualms with publicly chastising others whom he thought interpreted the law incorrectly – and he did so with language described as both caustic and sarcastic. Secondly, Hasen believes that justices are largely results-oriented. And, he argues, Scalia was no exception. His decisions often coincided with his policy preferences despite lofty rhetoric and the use of a purportedly neutral approach.
Finding that Justice Scalia’s originalist approach minimally affected decisions, Hasen laments its potentially negative consequences. Beyond promoting a false sense of law, Scalia may have polarized the Court. To quantify this, Hasen points to a decline in public support for the Court, ideological polarization among the justices, and increasingly vituperative opinion language (see pp. 71-81). Of course, these events may have occurred independently of [*44] Scalia’s actions. Even if his behaviors did not directly harm the legitimacy of the Court, Scalia may have encouraged a form of originalism among his admirers less tempered by respect for precedent and the role of tradition than the one he practiced (see p. 37).
I agree that it is appropriate to evaluate Justice Scalia based on the standards to which he claimed adherence. CONTRADICTIONS OF JUSTICE SCALIA would have been strengthened, however, by spending some time contrasting Justice Scalia’s behavior with those of his colleagues. For example, was Justice Scalia any more results-oriented than his colleagues on the bench? Did his colleagues not also profess to “follow the law”? If so, did they also fall short of their aspirations? Finally, to what extent do the off- and on-bench behaviors of other justices also weaken the legitimacy of the Court?
The book does focus in on one of Scalia’s colleagues: Justice Clarence Thomas. This is an obvious choice, given Justice Thomas also professes devotion to originalism. In an interesting twist, Hasen describes Scalia as a “faint-hearted” originalist and Justice Thomas as a more devoted follower. Unfortunately, this leaves the reader guessing as to what makes a good justice. Earlier in the text, Hasen suggests that Justice Scalia could have exercised greater influence over his colleagues if only he had been willing to moderate his approach to judicial decision making (see pp. 10-11). Yet, by doing so, Scalia would have opened himself up to even greater criticisms of inconsistency.
These comments highlight a more general criticism of the book. Hasen could have spent more time understanding why Justice Scalia chose to act as he did. Rather than saying the justice should have been more moderate, we might consider which goals are most consistent with this decision to stand apart from the crowd. Rather than saying he should have used more professional language, we might consider why using emotional language is a strategic decision to influence specific audiences. As multiple scholars have established, justices are strategic actors who seek to achieve their goals in an interdependent environment — an environment in which their choices depend on the choices and preferences of others (e.g., Epstein and Knight 1997). Although Scalia may have been a polarizing figure, this was likely a strategic choice made to achieve specific goals.
Additionally, Hasen emphasizes the role of Justice Scalia as a disruptor. According to Hasen, Scalia challenged the established legal order, disrupting the Court like “Speaker of the House Newt Gingrich disrupted the House of Representatives in 1994 and Donald Trump disrupted the presidency in 2016.” In claiming the lone legitimate tool of legislative interpretation, Hasen continues, “he upset the eclectic and ecumenical approach to interpretation most American judges and Supreme Court justices had used for two hundred years” (p. 5). While Hasen suggests that justices need to return to an established legal order of judicial interpretation, it is unclear what that legal order was and whether it also masked the indeterminacy of law.
Indeed, because law is often ambiguous and because people disagree on judicial roles, any method of judicial philosophy is likely to generate some controversy. The dangers with Scalia’s approach to jurisprudence are his assertion that there is one correct method of finding the truth and the potentially counterproductive effects of his caustic and sarcastic defense of this approach. Thus, society would perhaps benefit from a quieter and humbler version of Justice Scalia on the Court. This would allow for a diversity of methodologies, minimal difference in substantive outcomes, and fewer negative externalities with regard to Supreme Court legitimacy.
Just as no single judicial philosophy is perfect, the same goes for any book (or book review). Despite my minor criticisms, THE JUSTICE OF CONTRADICTIONS is a book I highly recommend. Readers will enjoy the nuanced and complex textual portrait of Justice Scalia. Even knowledgeable observers of the Court will be surprised by what they learn of Justice Scalia’s behavior both off and on the bench. For [*45] example, I was especially intrigued to learn about Scalia’s relationships with his law clerks and his personal views towards many of the social movements gripping our society today.
In sum, Richard L. Hasen presents a thought-provoking and intriguing view of Justice Scalia, a man of many contradictions. What will be Scalia’s legacy? Read the book and find out. The stakes could not be higher. Only time will tell how the justice will be remembered, if his moderated originalism will live on, and whether the Court he left will maintain its crucial legitimacy.
REFERENCES:
Epstein, Lee and Jack Knight. 1997. THE CHOICES JUSTICES MAKE. Washington DC: Congressional Quarterly Press.
© Copyright 2019 by author, Christopher N. Krewson.
