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 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.
