Judicial review

For 30 years, Antonin Scalia was a larger-than-life figure on the U.S. Supreme Court, known as much for his scathing dissents and outrageous public comments as for his staunchly conservative approach to interpreting the Constitution.

In The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, being released this month by Yale University Press, Richard Hasen, UCI Chancellor’s Professor of law and political science, examines the complex legacy of the famed jurist, who died in 2016. In his review of the book, Norman Ornstein, a resident scholar with the American Enterprise Institute, writes: “Hasen has given us a masterpiece on [Scalia’s] jurisprudence and his personality – sophisticated but accessible, insightful and penetrating. A must-read for anyone interested in the court and its impact on society.”

Hasen goes beyond just exploring Scalia’s influence on such issues as abortion, gun rights and the separation of powers. His analysis of Scalia’s judicial record reveals him as a man of these divisive political times who, in moving the court to the right, alienated potential allies and helped delegitimize the institution he was trying to save.

Here, Hasen – named in 2013 one of the 100 most influential lawyers in America by The National Law Journal – discusses The Justice of Contradictions.

Q: What is the fascination with Scalia, from a legal scholar standpoint?

A: His role on the court was a conundrum. He came up with tools for deciding cases that he said would increase the legitimacy of what the court did, but he attacked other justices who didn’t follow him, thereby undermining the court’s legitimacy. He called for more civility but was among the most caustic justices in his opinions. He was gregarious and sharp; people either loved him or hated him. I wanted to show some nuance.

Q: You write that “by some measures Scalia was the most influential justice of the past two generations.” How so?

A: Not by the most conventional measures, such as writing the most important majority opinions, or by being the “swing justice” who cast the vote that decided most cases. He was influential by the sheer force of his intellect and writing. He convinced many judges and lawyers that they should fundamentally alter how they analyze cases involving the meaning of statutes and constitutional provisions. He also changed the way lawyers and judges criticize each other’s work – and, I’d argue, not for the better.

Q: How responsible is Scalia for today’s partisan political deadlock?

A: I gave an early draft of the book to our chancellor, Howard Gillman, who is one of the country’s leading experts on the Supreme Court. He encouraged me to develop more forcefully my argument that Scalia was a disruptor of the Supreme Court, much in the same way that Newt Gingrich disrupted how the House of Representatives works and Donald Trump has disrupted the presidency. Scalia was a populist, anti-elitist and conservative libertarian, and his role speaking publicly about the court made it be seen by the public as a more partisan institution.

Q: You also write that by politicizing the court and delegitimizing his opponents, Scalia left behind a weakened Supreme Court. Why is that dangerous?

A: Especially in these troubled and polarized times, it’s important for the Supreme Court to have the confidence of the people that it will impartially decide cases and enforce the rule of law. The more the justices are polarized and the court is seen as having “Democratic” or “Republican” justices, the worse it is. It’s not clear that the path toward polarization blazed by Justice Scalia and others is easily reversed.

Q: So much of what we know of Scalia is based on his personality – the fact that he regularly mocked his opponents, for example. But what are the lasting impacts of his judicial decisions, and how do they still drive the court today?

A: Justice Scalia wrote important decisions in the area of criminal procedure, such as the Sixth Amendment right of the accused to confront witnesses against him or her, as well as an opinion recognizing an individual right to possess guns under the Second Amendment. But more important than his individual decisions was his methodology for deciding the meaning of constitutional provisions and statutes: He wrote that they should be interpreted in line with their original public meaning, famously declaring (against the concept of a “living” Constitution) that he liked his Constitution “dead, dead, dead.”

Q: Your book provides a telling look into the seemingly secret workings of the Supreme Court. What makes it so fascinating a topic?

A: The Supreme Court is the top of one of the three branches of the federal government, but it’s the least understood (in part because the justices do what they can to make their proceedings opaque, such as not allowing video recordings of oral arguments). The court has so much power, with justices with life tenure deciding issues that affect every American’s rights to life, liberty and the pursuit of happiness. My look at Scalia helps show how the court makes its decisions and how the justices’ values inevitably are caught up in how they apply the law.