Destroying a Political Attack on Justice Scalia and Originalism

Ed Whelan, President of the Ethics and Public Policy Center, is the latest legal scholar to destroy the Democrat Party’s unofficial election law professor Rick Hasen. (See Professor Brad Smith's recent rebuke here.) The problem for Hasen is that he seems to have given up on efforts at scholarship and is focusing on advancing Democrat Party agenda and liberal political ideology. Hasen’s latest attack is on conservative icon, the deceased Justice Antonin Scalia.

Whelan obliterates Hasen’s arguments in three posts.  First, Whelan describes the absurdity in Hasen’s overall argument against the philosophy of originalism:

Scalia “wrote that his ideas could increase the legitimacy of judicial decision making, yet his attacks on his opponent may have undermined it.” On page 7, Hasen similarly asserts: “For someone who cared so much about the legitimacy of the Court, much of what he said about the work of other justices seemed aimed at delegitimizing them as judges.” 

There is no contradiction at all here. Scalia believed that the Court earns its legitimacy by soundly exercising reasoned judgment — and that it undermines its legitimacy by acting in an unprincipled manner. So it’s entirely consistent for him to discredit, or delegitimize, bad judging.

This should be obvious.  If it were true a Court has legitimacy simply because it makes decisions, then a Kangaroo Court of a third world dictator would have as much currency as the U.S. Supreme Court. 

Hasen also attacks Scalia for trying to trying to undermine American jurisprudence:

Hasen contends that Justice Scalia was “seeking to undermine common approaches to American jurisprudence with new and revamped theories of interpretation.” (P. x.) But unless we are to imagine that “American jurisprudence” began with the Warren Court, Hasen has things entirely backwards: Scalia was seeking to restore traditional methods of interpretation.   

Indeed, Hasen himself ends up obliquely confirming my point. On statutory interpretation, he initially acknowledges that Scalia’s textualism “hearkens back to ‘formalist’ judicial philosophy of eighteenth-century legal thinkers such as William Blackstone.” He then makes the odd claims that “[t]extualism is different” from Blackstone’s formalism and that “Scalian formalism [which Hasen equates with textualism] puts its faith not in an immutable law of nature but in linguistic analysis.” (Pp. 26-27.) So the reader is supposed to take from this passage that Blackstone wasn’t a textualist but instead somehow derived the meaning of texts from the “immutable law of nature.” Yet ten pages later, Hasen refers to “Blackstone’s notion of a statutory truth that can be ‘found’ by sufficiently careful textual analysis.” (P. 37 (emphasis added).) (I will not maintain that Blackstone’s textualism is in all respects identical to Scalia’s, but, as Hasen appears to concede, the two are much closer than Blackstone’s is to purposivism or pragmatism or Hasen’s other “more eclectic theories of interpretation.”)

Hasen not only defeats his own arguments in his book but also doesn't even properly read the specific cases for which he is attacking Justice Scalia. Whelan’s analysis exposes how in the second “Obamacare” dissent, Scalia answered in great detail Hasen’s alleged contradiction, which Hasen completely omitted.

Hasen’s primary claim is that Scalia’s dissent in the second Obamacare case, King v. Burwell (2015) — in which Scalia opined that the statutory phrase “Exchange established by the State” does not mean “Exchange established by the State or the Federal Government” — “was not mandated by his own methods of interpretation.” In support of his claim, Hasen spends some ten pages setting up Scalia’s brief separate opinion in Green v. Bock Laundry Machine Co. (1989). The question in that case was whether the term “defendant” in the then-existing version of Rule 609(a)(1) of the Federal Rules of Evidence applied to civil defendants as well as criminal defendants. In his separate opinion, Scalia observed that the text of Rule 609(a)(1), “if interpreted literally, produces an absurd, and perhaps unconstitutional, result,” and he concluded that, of the two alternatives available, interpreting “defendant” to mean “criminal defendant” would do “least violence to the text.”

Why, then, asks Hasen in a flurry of rhetorical questions, does Scalia adopt a “relentlessly literal reading” of “Exchange established by the State” in King v. Burwell? How is his position in King compatible with his position in Green? “[I]s it any less absurd to read a single clause [sic] in a twenty-seven-hundred-page law … to contain the seeds of [the law’s] own destruction?”   

Amazingly, Hasen nowhere informs his trusting readers that Scalia actually supplies an answer. In his dissent in King v. Burwell, Scalia writes (citations omitted; emphasis added):

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” … The occurrence of a misprint may also be apparent because a provision decrees an absurd result — a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately — for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.  

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act — none at all — contradicts the limitation of tax credits to state Exchanges. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

Hasen no doubt has earned his seat at a good table at liberal and Democrat Party dinners. However, Hasen’s book shows the very important difference between the political and politicians on one side and the rule of law and judges on the other. One is better off reading Whelan’s Scalia Speaks rather than Hasen’s Justice of Contradictions.