At Law & Liberty, Jesse Merriam (Patrick Henry College): A Justice—or a Court—of Contradictions? (reviewing Richard Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale Univ. Press 2018)). From the introduction:
I really wanted to like and learn from Richard Hasen’s The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, a book seemingly related to my interest in logical consistency and legal conservatism. But unfortunately, in this book I found little to like and even less to learn.
Although Hasen provides an accessible and at times compelling critique of the inconsistencies in Justice Scalia’s character and jurisprudence, Hasen’s analysis is mired by a significant blind-spot: He does not consider whether Justice Scalia is any more inconsistent than his colleagues. As a result, the book reads more like a polemical diatribe against Justice Scalia than a thoughtful examination of his judicial legacy and the value of consistency as a judicial virtue. Hasen’s focus on Justice Scalia as the justice of contradictions is particularly inapt, given Scalia’s expressed commitment to the Aristotelian notion that “[c]onsistency is the very foundation of the rule of law.”
After reading the book’s 178 pages, the attentive reader may find that he has learned more about Hasen’s own inconsistencies than those of his object.
And in conclusion:
This is a book of missed opportunities. The book could have focused on the importance of judicial consistency. Such a book would have criticized various justices, both left and right alike, for their derogations from this important ingredient of the rule of law. Hasen’s book, however, discusses the other justices as background characters who stray from their judicial duties only due to Justice Scalia’s insurmountable power.
Likewise, the book could have explored Justice Scalia’s inconsistencies in a more ideologically nuanced way, so as to include more consideration of how his approaches to originalism, textualism, and judicial power have produced liberal results. Hasen could have written a much more compelling account of Scalia’s inconsistencies if Hasen were less tethered to his particular ideological agenda.
Finally, the book could have probed further and explored what is behind the contradictions within the Supreme Court as an institution. Instead of simply blaming Scalia for the Court’s inconsistencies, Hasen could have acknowledged that these inconsistencies are more a function of the peculiarities of our political system than the peculiarities of particular justices. When we empower nine unelected, life-tenured lawyers to adjudicate the most mundane matters of local government, including decisions by law enforcement, school boards, and public libraries, we are going to see the inconsistencies of a multicultural nation of 330 million people reflected in their decisions.
Such discussions would have contributed to our legal discourse and perhaps even lessened our own inconsistencies. I cannot say that this book accomplishes either feat.
Posted at 6:38 AM