TEXTUALISM FOR REALISTS.

• Author: Samuel, Ian
• Position: Book review

THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION. By Richard L. Hasen, New Haven and London: Yale University Press. 2018. Pp. xvi, 178. $30.

INTRODUCTION

The sudden death of Antonin Scalia was a monumental event. (1) Politically, it set off a confirmation battle over President Obama's chosen nominee, Merrick Garland--a battle that the president lost when the Senate did not hold hearings on the nomination. (2) And there is very good evidence that the vacancy played a major factor in the quite close 2016 presidential election of Donald Trump. (3) Instead of Garland, Scalia was replaced by Neil Gorsuch, (4) a conservative and a self-described textualist and originalist in the mold of Scalia himself. (5) A little over a year later, at the end of October Term 2017, Anthony Kennedy announced his retirement; the president's chosen replacement, Brett Kavanaugh, is widely expected to be more conservative than Kennedy. (6) The death of the Court's most iconic conservative member may thus have ironically created the most conservative Court in a very long time, with Chief Justice John Roberts likely occupying the position of the median justice--for now.

These are interesting developments to consider alongside Rick Hasen's (7) newest book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption. In it, Hasen offers up the first posthumous, book-length assessment of Scalia's judicial legacy--the book is very consciously not a biography--and finds it largely wanting. Justice Scalia, he says, should be understood as the judicial equivalent of Donald Trump and Newt Gingrich--a "disruptor," whose style deliberately delegitimized the institution of which he was a member (p. 5).

Hasen's book ought to be read by everyone with a strong opinion about Justice Scalia, in either direction. Skeptics of Scalia, of course, will find much to nod at. But actually, my recommendation is especially true for the justice's admirers--who will find much to disagree with in the book, but who nonetheless ought to read it to understand what is likely to be the party line of sophisticated Scalia skeptics in the years to come. And although neither virtue counts for much in the academic press, for what it is worth, the book is very readable and (a virtue Scalia himself would have appreciated) admirably free of filler--Hasen gets to the point.

Hasen, to his credit, resists the most hysterical claims of Scalia's critics and offers a measured--but decidedly opinionated--take. When Hasen refers to Scalia as a "justice of contradictions," he does not really mean that the good and bad in Scalia were complex; rather, he largely seems to mean that Scalia was a jurist who contradicted what Scalia himself held out to be the good. Though Scalia may have professed fealty to the text of statutes or to the Constitution's original meaning, Hasen argues this fealty was flexible enough to permit outcomes that were politically agreeable to Scalia (p. 48). Despite what Scalia spent his life arguing, textualism and originalism do not impose any real constraints on judges' discretion. In the end, Hasen says, it's all politics, and he seeks to demonstrate this by examining Scalia's decisions in a dizzying area of substantive areas--everything from abortion to election law to criminal procedure. In almost all of these areas, Scalia's methods proved flexible enough to permit him to reach outcomes consistent with what Hasen believes about Scalia's personal political beliefs (he calls him a "conservative libertarian" who was skeptical of government power (8)).

If that were all Hasen said, his book would not be nearly as interesting as it is. But Hasen does not argue that this flexibility is solely a feature of Scalia's preferred legal methods. His claim is more sophisticated. He says this indeterminate flexibility is a feature of all judicial philosophies. Neither "textualism [nor] any other set of interpretive rules will restrict judicial discretion," he says, and the outcomes in the most important cases will always be "driven by ideology and a sense of fair results" (pp. 36-37; emphasis added). In other words, Justice Ginsburg, no less than her old opera companion, is also just voting her politics, albeit using a very different legal method. For that matter, so is Justice Kagan, despite her professed fealty to textualism. Scalia "was not more ideologically driven or results-oriented than his fellow justices" (p. 63); that is just what judges do, in Hasen's view, and we should stop pretending otherwise.

In this Review, I argue that for a person on the political left, in the contingent historical circumstances of the United States in 2018, it would be disastrous as a practical matter to accept or profess this position. Even if a person buys in to Hasen's realist critique, there are good reasons to advocate for relatively formal methods like textualism and originalism. First, such methods are certainly no worse than any other methods, insofar as all decisionmaking philosophies are equally indeterminate in Hasen's account. Second, and more important, formal methods are demonstrably capable--at least in some cases!--of getting otherwise conservative judges to vote for outcomes that they may not personally like. Given that the Supreme Court may be in the hands of conservative judges for the next twenty-five years, if you are on the political left (as Hasen is, and as I am), some account of how to restrain those conservative judges is of the highest priority.

1. TEXT, HISTORY, AND OTHER DISTRACTIONS

   Aside from a roughly twenty-page interlude that concerns writing style (which I will discuss later), Hasen's argument is about Justice Scalia's substantive judicial legacy. In particular, Hasen is skeptical--deeply skeptical-about textualism and originalism, the two pillars of Scalia's method. The book's second chapter is an extended, critical discussion of textualism as an interpretive theory, the title of which ("Word Games") gives a sense of Hasen's attitude about it. Reducing "serious legal disputes to word games" leads, he says, to "unfair results" and is "not at all in line with how legislators and their staffs who write the statutes view their jobs" (p. 30). Relying on the work of Abbe Gluck and Lisa Schultz Bressman, (9) he argues that given how drafters in Congress actually work, "text cannot fairly be the only consideration" (p. 31). And originalism fares no better (Chapter Three). Hasen's broad attack on originalism opens by quoting Justice Alito making a sarcastic joke about it at oral argument (10) and concludes by describing the "notion that judges can use originalist methods to 'find' or 'discover' the law, rather than make it," as a proven "illusion" (p. 63).

   Skepticism about textualism and originalism are not new. But Hasen's claim goes quite a bit further than most critics', a fact that emerges over the course of the book but becomes especially clear by the closing pages. In those pages, he quotes remarks that Scalia gave to the Philadelphia Bar Association in 2004: "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically." (11) Part of that, says Hasen, is "exactly right": "Justices who approached the Constitution as a living document were likely to be swayed by many factors, including public opinion and their own values, in deciding difficult cases" (pp. 177-78). But Hasen argues that no matter one's judicial method, it is impossible--Hasen uses that word--to "objectively and neutrally determine what the Constitution 'actually commands' " (p. 178). There is "no methodology" that can do that, argues Hasen, and so "[uncertainty in interpretation is inevitable" (p. 178). All that politicians who choose judges can hope for, on this view, is that judges will vote the policy preferences the politicians themselves share. The Supreme Court "has always been a political institution," says Hasen (p. 178)--and always will be.

   This situates Hasen's argument comfortably within the space created by some combination of the attitudinal model of judicial decisionmaking and the indeterminacy thesis. The former is an empirical model of judicial behavior in which Supreme Court justices simply vote their policy preferences. (12) In other words, the attitudinal model of judging is one where "Supreme Court justices' decisions are driven purely by their sincere, one-dimensional ideological preferences." (13) This descriptive claim is obviously controversial, (14) but it also (like it or not) has significant predictive power in the real world. (15) When Hasen says that the Court is a "political institution" and that decisions are driven by ideology and a sense of fair results, I take him to express at least bounded agreement with this view. (Perhaps unsurprisingly, in addition to being a lawyer, Hasen is a political scientist, a group that has always been more comfortable with this model than pure lawyers.)

   The indeterminacy thesis is a more theoretical claim. (16) A proposition of law is said to be "indeterminate" if the ordinary materials of legal analysis (statutes, case law, regulations, and all the rest) are insufficient to resolve the question "is this proposition legally correct?"--or rather, could equally support "this proposition is legally correct" and "this proposition is legally incorrect." (17) Nearly everyone agrees that at least some legal propositions (such as "highly contentious Supreme Court decisions interpreting the Constitution") are indeterminate in that sense. (18) But true believers in the indeterminacy thesis think that nearly all legal propositions--at least, all legally interesting propositions--are indeterminate. (19) I do not know if Hasen would go that far, but he repeatedly refers to the indeterminacy of the right...