Litigation

Cal. Litig. 2018, Volume 31, Number 3

The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Richard L. Hasen

Reviewed by Marc Alexander

With scalpel and sledgehammer, Richard L. Hasen, Chancellor’s Professor of Law and Political Science at UCI, slices, dices, and slams the jurisprudence of the late Supreme Court Justice Antonin Scalia. As the title of Hasen’s book foreshadows, two of his major themes are that the jurisprudence of the rambunctious Associate Justice was riddled with contradictions, and that Scalia was a disruptive presence on the court. Hasen’s core critique of Justice Scalia’s jurisprudence is that it promised to deliver an objective and neutral jurisprudence, based on textualism and origi-nalism, but that in fact, Justice Scalia’s profound personal values often explained his opinions better than did his professed methodology.

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Textualism, as explained by Hasen, "states an aim to apply a fair reading of a statute as its meaning would have been understood by common speakers of English at the time it was drafted." "Under Scalia’s theory," which Hasen criticizes, "deciding a statute’s meaning is more akin to solving a word puzzle than to delving into the minds of the legislators who passed it, or figuring out the best policy answer or the fairest result given current circumstances." As practiced by Scalia, textual-ism leads attorneys to dictionary-shop for the meaning of words, and results in linguistic "parlor games." Ambiguities may be resolved by resort to canons of construction deftly employed to parse meaning. It may be quite within the interpretive power of the judge to create, or to erase ambiguity, making textual-ism and originalism flexible doctrines capable of yielding result-oriented outcomes. Word parlor games that do not make use of historical context, legislative history, tradition, and values can lead to strained or even absurd results.

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