The Justice Of Contradictions: Antonin Scalia And The Politics Of Disruption

Author: Richard L. Hasen
Publisher: New Haven, CT: Yale University Press, 2018. 248p.
Reviewer: Jack E. Call | March 2020

In The Justice of Contradictions, Richard Hasen has written an engaging (early) assessment of the legacy of Antonin Scalia. As Hasen is careful to point out, his book is not a biography of Scalia. Nor does he attempt a comprehensive examination of the entire body of Scalia’s work on the Supreme Court.

Instead, Hasen focuses on three substantive areas – cases dealing with the “culture wars” (abortion, same-sex marriage, guns, affirmative action, and religion), cases “bearing on democracy” (campaign finance, gerrymandering, voting rights, federalism, and separation of powers), and cases in criminal law (death penalty, the war on terrorism, confrontation of witnesses, and general rights of criminal defendants).

Before turning to his discussion of these substantive areas, Hasen devotes separate chapters to explaining the legal philosophies for which Scalia is famous – textualism and originalism. Textualism is applied in cases involving the interpretation of statutes. It requires a judge to determine the meaning of a statute based on the meaning of the words used in the statute, as those words were understood at the time the statute was written. Scalia considered the legislative history of a statute irrelevant because it neither represented the views of a majority of the legislators nor shed light on the meaning of the statute.

Originalism relates to constitutional interpretation. It is similar to textualism because it is concerned with the meaning of the words used in the Constitution. However, it goes one step further and asks “how people alive at the time [of the writing of the Constitution] would have understood its application to particular questions.” (p. 42).

In the culture war cases, Scalia’s originalism resulted in (or permitted, depending on your point of view) the kinds of outcomes that conservatives espouse. In abortion cases, Scalia not only rejected the idea that the Constitution recognizes a right to choose on the part of a pregnant woman, but he also refused to extend the doctrine of stare decisis to Roe v. Wade, the landmark Supreme Court decision establishing a constitutional right to choose. Roe recognizes a right to choose as a liberty interest protected by the 14th Amendment Due Process Clause (which prohibits states from denying persons life, liberty, or property without due process of law). Scalia saw no such liberty interest in the Due Process Clause, because he would have limited liberty to interests “found in the longstanding traditions of our society [or] logically deduced from the text of the Constitution.”

In other culture war cases, Scalia also saw no constitutional protections that prohibited states from criminalizing homosexual acts by means of sodomy statutes or from refusing to recognize a right to same-sex marriage. In perhaps the most significant majority opinion he ever wrote, Scalia found a personal right to bear arms protected by the 2d Amendment (D.C. v. Heller). In religious freedom cases, he took a majoritarian view, espousing the view that government is free, for the most part, to favor or disfavor religious practices. (See, for example, Employment Division of Oregon v. Smith).

In another culture war area, Scalia’s approach to affirmative action programs demonstrated his failure to consistently follow originalism. The constitutional issue in affirmative action programs is whether the preferences those programs extend to minority groups violate the Equal Protection Clause of the 14th Amendment. However, as indicated above, originalism is informed by “how people alive at the time [of adoption of the constitutional provision] would have understood its application to particular questions.” However, at the time the 14th Amendment was adopted, in the years following the Civil War, programs assisting the newly freed slaves were common. Thus, it is difficult to see how people in the late 1860’s would have objected to the concept of affirmative action. Nevertheless, Scalia took positions against such programs, but he dismissed the value of diversity as a proper justification for government action.

The second major group of Scalia cases discussed by Hasen are “cases bearing on democracy.” Undoubtedly, the preeminent case in this area is Citizens United v. FEC (2010), striking down a federal law that limited the amount of money that individuals and organizations can spend in an election as a violation of free speech. Again, Scalia was willing to deviate from stare decisis and overturn precedent (including quite recent precedent).

Not only was he unwilling to let legislative majorities attempt to prevent money from exerting undue influence in elections, he also took a narrow view of Congress’ ability to impose restrictions on states with a history of racial discrimination in their elections (in the Voting Rights Act of 1965), even though those restrictions were imposed by overwhelming bipartisan majorities (Shelby County v. Holder).

On the other hand, he saw no problem with those majorities drawing skewed election districts designed to favor the party of those majorities (called political gerrymandering). Nor did he seem concerned with legislation that appeared to make it more difficult for members of some minority groups to vote. Scalia was not always in the majority on these and other issues dealing with democracy. Hasen concludes, however, that if “Scalia’s jurisprudence on the law of politics and political power [had] gained the Court’s full support, it would have threatened some core democratic principles.” (p. 144).

The third substantive area of Scalia cases discussed by Hasen concerns criminal law and procedure. Scalia’s decisions in this area are decidedly mixed. Scalia was unflinching in his support of the constitutionality of the death penalty. The author begins this chapter by noting the unusually great detail with which Scalia described the gruesome details of the “Wichita Massacre” case that resulted in death sentences for the two brothers who tortured, sexually assaulted, and murdered four people (leaving behind a fifth person that they thought they had killed) (Kansas v. Carr). Hasen speculates that the unusually detailed description was calculated to convince readers that the death penalty is appropriate retribution, at least in cases of such heinous cruelty. Scalia also saw no constitutional problems with executing minors or members of minority groups in the face of strong statistical evidence that the death penalty was being carried out by a state in a racially discriminatory manner.

Scalia was equally supportive of the government’s position in several cases dealing with the war on terrorism. He dissented from holdings that extended the right to bring petitions for a writ of habeas corpus to both non-citizen and citizen “enemy combatants” being held at Guantanamo Bay.

He also showed little support for the Miranda rules or the exclusionary rule. The author points out that Scalia wrote the Court’s opinion in a case that refused to apply the exclusionary rule to violations of the knock and announce rule. Surprisingly though, Hasen does not point out that the knock and announce decision laid the foundation for a later opinion (which Scalia joined) that is viewed by some students of the 4th Amendment as establishing a full-blown good faith exception to the exclusionary rule (U.S. v. Herring).

On the other hand, Scalia demonstrated surprising support on occasion for the rights of criminal defendants. He took a leading role in interpreting the Confrontation Clause of the 6th Amendment to prevent the introduction at trial of statements made outside of court when the person who made the statements was not available for cross-examination at trial by the defense (Crawford v. Washington). He also wrote the Court’s opinions holding that the use of a thermal imaging device outside of a home to measure the amount of heat emanating from the house was a search subject to the requirements of the 4th Amendment (Kyllo v. U.S.) and resurrecting the trespass doctrine by holding that attaching a GPS tracking device to the outside of a car is a search (U.S. v. Jones).

Surprisingly, Hasen does not mention what may be Scalia’s most important 4th Amendment decision, Arizona v. Gant. The Court’s case law prior to Gant had been used by the police (appropriately enough) to justify warrantless, suspicion-less searches of the interior of motor vehicles when an occupant or a recent occupant of the vehicle was arrested. This line of cases had created a substantial incentive for the police to make pretext arrests of suspicious persons on the road. In Gant, the Court ruled that the police could not conduct these searches unless the person arrested was unsecured and within reaching distance of the vehicle or unless it was reasonable to believe that evidence of the crime of arrest was in the vehicle. Although Scalia did not write the majority opinion in Gant, he had written a concurring opinion in Thornton v. U.S. that articulated the rule later adopted by the Court in Gant.

THE JUSTICE OF CONTRADICTIONS documents at least three ways in which Justice Scalia acted in a contradictory manner. First, he was not consistent in his adherence to originalism. An example of that inconsistency was discussed earlier when it was mentioned that Scalia opposed affirmative action programs even though similar kinds of programs were common during the period shortly after ratification of the 14th Amendment.

Another example concerns the selective incorporation doctrine. That doctrine uses the Due Process Clause of the 14th Amendment to make most of the rights contained in the Bill of Rights applicable to the states. Of course, the 14th Amendment does not incorporate those rights explicitly, and Scalia did not believe that it was generally accepted when the Amendment was ratified that it would have this effect. Nevertheless, Scalia adhered to the doctrine because he believed that adherence to stare decisis required it. This was quite convenient because it permitted Scalia to take the position that the newly recognized individual right to bear arms in the 2nd Amendment (D.C. v. Heller) also applied to the states (McDonald v. City of Chicago).

A second contradiction was Scalia’s inconsistent adherence to stare decisis. As just mentioned, he followed stare decisis in his approach to selective incorporation. However, he did not follow it in the Citizens United case. The cases the Court declined to follow (and overturned) in Citizens United were relatively new, which makes the case for not adhering to stare decisis a little easier to make. The same cannot be said, however, about his refusal to follow precedent in the abortion cases. When Scalia first took a position in favor of overturning Roe v. Wade, the decision was only sixteen years old, but by the time of his last abortion case dissent (Stenberg v. Carhart), Roe was nearly forty years old.

A third contradiction concerns Scalia’s desire to use originalism as the basis for legitimizing the Supreme Court’s decision-making and making the Court less of a public lightning rod. The problem was that Scalia frequently used disparaging language to criticize the positions taken by his colleagues. It is difficult to reconcile such critical language with an effort to increase public respect for the Court.

This last contradiction provides a segue into Hasen’s discussion of Scalia’s legacy. Scalia publicly decried the loss of a decent, respectful culture. Yet the language he used to criticize his colleagues contributed to that lack of respect. He called the arguments of other justices “bizarre,” “grotesque,” and “incoherent.” He once said that a position taken by Justice O’Connor could not be taken seriously. This strident approach to legal argument has significantly lowered the level of legal discourse. A prominent law school dean observes that even students who disagree with Scalia’s positions are imitating his “pungency.” (p. 73)

In spite of Scalia’s own inconsistency in the application of originalism, the doctrine has clearly reshaped the focus of legal analysis. Justice Kagan has famously said, “We are all textualists now.” Even justices taking a position opposed by Scalia often began their arguments with an originalist/textual approach. What’s more, Hasen believes that Scalia’s influence has created a “farm team of judges” who may take an even more vigorous, consistent originalist approach if appointed to the Supreme Court. It may not be that Scalia was the justice on the Court who had the greatest impact on the law, but he may be the justice who has the greatest influence on future law. Time will tell.

References

Arizona v. Gant, 556 U.S. 332 (2009).

Citizens United v. FEC, 558 U.S. 310 (2010).

Crawford v. Washington, 541 U.S. 36 (2004).

District of Columbia v. Heller, 554 U.S. 570 (2008). Employment Division of Oregon v. Smith, 494 U.S. 872 (1990). Kansas v. Carr, 136 U.S. 633 (2016).

Kyllo v. U.S., 533 U.S. 27 (2001).

McDonald v. City of Chicago, 561 U.S. 742 (2010).

Roe v. Wade, 410 U.S. 113 (1973).

Shelby County v. Holder, 570 U.S. 529 (2013).

Stenberg v. Carhart, 530 U.S. 914 (2000).

Thornton v. U.S., 541 U.S. 615 (2004).

U.S. v. Herring, 555 U.S. 135 (2009).

U.S. v. Jones, 565 U.S. 400 (2012).