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A N 8 D 8 B 18 AR CE www. NYLJ.com SIN Volume 260—NO. 8 Thursday, July 12, 2018 Lawyer’s Bookshelf The Justice of Contradictions: Antonin Scalia and the Politics of Disruption

Richard Hasen, a distinguished and Reviewed by prolific professor of law at the Uni- Benjamin E. Rosenberg versity of California Law School at By Richard L. Hasen, Irvine, has a decidedly negative view Yale University Press, 226 pages. of Justice Scalia. He would answer (b) and (d) above. His book, The Justice ntonin Scalia served on the U.S. of Contradictions, contends that Sca- Supreme Court from 1986 to lia had a political agenda: He favored A2016. Depending upon whom states over the federal government, one asks, he was business interests over the interests (a) A pathbreaking jurist, who of individuals, and the power of the provided principled theories of states over religious groups. Accord- statutory and constitutional inter- ing to Professor Hasen, although Scalia pretation purported to champion the doctrines (b) A political and social con- of (roughly, the constitu- servative, whose consistent rul- tion meant what it was understood to ings in favor of states’ rights and mean when it was enacted) and textu- business interests, and against alism (the words of the statute should civil rights, were the product be interpreted without any reference cally makes the book easy to follow. not of a coherent judicial phi- to legislative history) his advocacy Hasen describes and analyzes Scalia’s losophy but of his personal for the doctrines was at best incon- interpretive methods ( and preferences sistent and at worst cynical. He used originalism, chapters 2 and 3), his (c) A sharp and incisive writer, them when they advanced his policy rhetoric (chapter 4), his opinions in who called his colleagues to task preferences, and abandoned them, or the “culture wars,” including abor- for muddled thinking and politi- applied them disingenuously, when tion, gun rights, same sex marriage, cally-motivated decisions, or they did not. and religion (chapter 5), on campaign (d) A polemicist, whose angry Justice of Contradictions discusses finance, gerrymandering, and separa- diatribes, especially in dissent, numerous cases and doctrines in tion of powers (chapter 6), and on undermined the authority of the simple terms so that one can eas- criminal matters (chapter 7). His final Supreme Court. ily follow Hasen’s arguments. His chapter (chapter 8) is a summing up, decision to cover the material the- but by that point there are no sur- Benjamin E. Rosenberg is a partner at Dechert. matically rather than chronologi- prises, for Hasen has been ­up-front Thursday, July 12, 2018 about what he thinks of Scalia: His cepts are wrong. But Hasen never least one of the roles of the Supreme originalism was “a subconscious explains what exactly is wrong with Court, or of any court, should be to crutch, or worse, a fig leaf, a pretext Justice Scalia’s judicial philosophy, or show that disagreement can be strong justifying a result that lines up with what a different one would look like. yet civil, and on that score Scalia may one’s ideology” (63) and he “let his For example, Hasen quotes Justice be faulted, as Hasen does. values affect his jurisprudence.” (174) Scalia expressing his preference for Even here, though, Hasen’s other- Even for those who are generally a “dead” constitution, and implies wise reasonable observations and familiar with Scalia’s opinions, Jus- that there is something wrong with judgments are marred by a desire tice of Contradictions can serve as a that preference. (42) Perhaps so, but to blame Justice Scalia for all flaws: summary and refresher. Those who Hasen does not explain the problem, He blames Justice Scalia for encour- are not familiar with the opinions will or address any of the questions sur- aging “the demonization of justices get a useful, if sharply opinionated, rounding how one should interpret on the opposite side of the aisle,” overview. a “living” constitution. (80) and while there is a sound In the end, though, the book is dis- Professor Hasen’s zest to criticize basis for that, Hasen goes on to say appointing because Hasen ploughs no makes him appear unfairly biased. that “[p]erhaps this polarization new ground in his criticisms of Scalia, He is grudging in his assessment of is what emboldened [Justice Ruth and he is unlikely to convince anyone Justice Scalia’s pro-defendant crimi- Bader] Ginsburg to break protocol who thought well of the justice that nal law opinions (e.g., ‘Apprendi,’ and publicly oppose the election of he should think less well of him after ‘Crawford’). Instead of acknowledging in 2016.” (80) That reading the book. that these are instances in which Jus- will strike many readers as a step too Scalia made no secret of his judicial tice Scalia followed his jurispruden- far. Justice Ginsburg made a mistake philosophy. He claimed that the role tial convictions to conclusions that in publicly opposing the election of of a federal judge in the United States he may not have preferred, Hasen Trump, and she apologized for it. was to interpret the constitution as it suggests, without any authority or She did not blame Justice Scalia, was originally understood, because evidence, that the opinions were or anyone else, and neither should to do anything else, and in particular motivated by a political agenda rather Professor Hasen. to interpret the constitution as a “liv- than concern for criminal defendants’ As he explains in the preface, Hasen ing” document, was a usurpation of rights: “Justice Scalia’s views here did not purport to write a “compre- power. Similarly, he claimed that it might be seen as pro-defendant, but hensive examination of all of Sca- was fundamentally undemocratic for perhaps it is more accurate to say lia’s opinions and ideas.” (xi) And, unelected judges to attempt to divine they reflect a distrust of government he admirably avoids getting bogged what Congress meant in any piece of and his strong belief in personal pri- down in academic discussions or legislation. The judges’ role was sim- vacy. For whatever reason, these jargon. Perhaps as a consequence, ply to interpret what Congress said. concerns were not well reflected in Justice of Contradictions is more Hasen criticizes Scalia’s philosophy many of the justice’s other criminal polemical than scholarly. Anyone in two ways. First, he argues that Sca- procedure decisions….” (155) wishing a balanced assessment of lia did not consistently adhere to his Hasen is on sounder footing when Justice Scalia’s jurisprudence will own precepts. But even Hasen would he observes that Justice Scalia’s have to look elsewhere. have to admit that Justice Scalia usu- rhetoric may have hurt the stature ally did, or attempted to do so. of the Supreme Court. Scalia did not In any event, Hasen’s more signifi- simply write strong dissents—many cant criticism is not that Justice Scalia justices have done that—but he often Reprinted with permission from the July 12, 2018 edition of the NEW YORK LAW applied his precepts inconsistently questioned the good faith of his col- JOURNAL © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 but that, in Hasen’s view, those pre- leagues who disagreed with him. At or [email protected]. # 070-07-18-11