The “Whelan Way:” Ed Whelan’s Bad Faith and Nasty Attack on My Book on Justice Scalia’s Legacy

I believe that the author of a book ordinarily should allow it to speak for itself, and let readers read the book and critiques before making their own determination about the relative merits of the book’s arguments. But Ed Whelan, who has offered a multipart critique of my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, invited me to write a response on Bench Memos and then attacked me for not doing so. When I tried to confirm I could write whatever I wanted in the piece, including the headline (which I shared with him), he refused, saying in a message to me: “Wow. You’ve really lost it. Shall I invite you to come defecate on my living-room floor? If you want to make those deranged charges in the text, fine with me. But readers will take the title (as is common with titles) as being from the editors.”

More than just defending my book (“Let’s see you defend your crap on King v. Burwell,” he wrote), this response provides me with an opportunity to point out Whelan’s nasty modus operandi for attacking opponents: take one small piece of evidence or one statement that is part of a larger point, argue that his opponent lied or was incompetent in relying on the small piece of evidence, read the evidence in the light most favorable to his ideological preference, and then conclude, in the nastiest way possible, that the author’s larger point should be rejected.

Whelan’s methodology is meant to bully his ideological opponents into submission or exhaustion. Well I won’t submit, nor will I offer a point-by-point rebuttal to Whelan’s multipronged attack. Such a response is not worth my time against an opponent who can act as the full time Scalia Reputation Police and attack dog against “liberal judicial activism.” Instead I will illustrate Whelan’s m.o. with two examples, and then conclude with a brief note about how his ideological valence affects his tone and rhetoric.

One argument I make in the book is that it is unclear whether or not Justice Scalia had anti-gay animus, or he was instead taking the position that it is up to each state to decide whether to punish gay sex or allow it, or to allow gay marriage or ban it. I spent five pages of the book (86-91) laying out the arguments on both sides, and I reach no firm conclusions though I think the case Scalia had such animus is plausible. I do point to statements such as Justice Scalia’s statement in 2012 to a gay student at a public event that “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.” On the other hand, I wrote in the book that some observers who believe he lacked gay animus point to “his vote in a 2013 case, Hollingsworth v. Perry, dismissing on technical standing grounds a challenge to a lower court decision holding California’s ban on same-sex marriage unconstitutional. The upshot of Hollingsworth, a 5–4 decision with Scalia in the majority, was to require same-sex marriages in California.”

Scalia also told Jennifer Senior in a 2013 interview when asked about his dissents the gay rights decisions: “Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it.  At least standing athwart it as a constitutional entitlement.” I remarked in the book about that comment that “the ‘at least’ hangs there as a big question mark.” I wasn’t sure where to put Scalia on this question and I made that clear.

Rather than discuss the totality of the circumstances of my case for and against the question, and my attempt to grapple with a difficult subject as evenhandedly has I could, Whelan makes it appear that the entire case hangs on a single phrase in a single Supreme Court dissenting opinion from 2003, Lawrence v. Texas in which, among other things, Justice Scalia wrote about the Supreme Court, the product of a “law profession culture,” “sign[ing] on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” (Whelan’s emphasis.)

Whelan then goes on to offer the incredible argument that even if some people would be offended by the term “homosexual agenda,” Scalia was disparaging it rather than embracing it because he prefaced it with “so-called.” This argument is weak on its own terms. As Joe Patrice observed, Whelan “deserves some credit here for inadvertently driving home yet again the intellectual bankruptcy of a textualist school of interpretation. If conservatives can read that passage and say, ‘Justice Scalia was disparaging the idea of a “homosexual agenda,” it becomes astoundingly difficult to ever take textualism seriously.”

But much more to the point, looking at the whole record of what Justice Scalia has said about gay rights, as chronicled in my book, it is not “reckless hyperbole” as Whelan says to say some of what Scalia wrote was “harsh anti-gay rhetoric.” It is how some ordinary people read Scalia’s words. And in any case, one would incorrectly think from reading Whelan’s piece that my entire case hinged on a single ambiguous snippet from a quote in a single case. It did not.

Now the second example. I devote all of the book’s Chapter 2 to Justice Scalia’s methodology of “textualism,” which requires looking at the ordinary public meaning of statutes at the time a legislature enacted it, subject to the use of certain “canons” or rules of construction that Scalia sometimes deployed to decide statutory cases. I make a number of points in the book: that textualism does not lead to determinate answers in many cases, that it was no more reliable (and could be less reliable) than a look at legislative history, and that Scalia was only a part-time textualist. I devote a great deal of attention to a 1989 Supreme Court case, Green v. Bock Laundry Machine Company, in which Justice Scalia explicitly ignored the plain meaning of the statute because he found the meaning “absurd,” and simply rewrote the statute. I contrast his willingness to rewrite the statute in Bock Laundry with his unwillingness to do so in King v. Burwell, the 2015 Obamacare case about whether people enrolled in health care under federal health care exchanges could be considered in a health care exchange “established by the state.” Scalia’s textualism led him to conclude no. I argue that there was a decent textualist argument put forward by Chief Justice Roberts reading the long statute as a wholein favor of reading it the other way, and more importantly I ask, “Why was Scalia willing to jettison his principles in a relatively unimportant case [Green] but not in such an important one [King]?

Rather than present and critique my broader points about Scalia’s textualism, Whelan says that “[a]mazingly…Hasen nowhere inform[s my] trusting readers” that Scalia “actually supplies an answer” in part of his King dissent where he says that courts can correct technical “misprints” but not substantive “mistakes.” And that a scrivener’s error may be apparent when it “decrees an absurd result.”  Whelan writes: “How could Hasen pose his rhetorical questions yet not even acknowledge, much less engage, Scalia’s answer? I will happily exclude the damning possibility that Hasen deliberately hid Scalia’s answer from his readers. But the remaining alternative — that he was unaware of it or had forgotten about it — is damning in its own way. For what does it say that Hasen would spend ten pages positing a fundamental inconsistency between two of Scalia’s opinions yet not have carefully read one of those opinions? (I’m not contending that Hasen couldn’t muster some sort of response to the passage from Scalia’s King dissent quoted above; the damning point is that he didn’t.)” Elsewhere on Twitter, Whelan says that I “botch[ed]” my “major argument” and engaged in “comical incompetence” for failing to address this point.

Here’s Whelan’s same m.o. Rather than discuss my entire chapter on textualism, and the multitude of my critiques against textualism, Whelan zooms in a single point which he says dooms my entire case. Of course, even if I’m wrong about the contrast of King versus Bock Laundry, it doesn’t doom my many arguments against textualism made in the chapter. For example, I argue that the absurd result canon which Scalia indisputably deployed in Bock Laundry is just a “rabbit out of the hat” solution to deal with hard textualist problems. Scalia cannot defend it well and other textualists have criticized him for using it occasionally. But I’m not wrong and Scalia’s quoted point is inapposite. Neither Scalia nor the other Justices treated the drafting language in Bock Laundry as a scrivener’s error. That claim appears nowhere in Scalia’s concurring opinion. Justice Stevens’ opinion traces exactly how the provision went into the law. It was as much a substantive mistake as the supposed mistake in Burwell.

Finally, a word about Whelan’s use of tone and rhetoric. Unlike his former boss and mentor Justice Scalia, who was talented in writing barbs, Whelan resorts frequently to the ad hominem attack, calling opponents (or their ideas) “stupid” or using other insults. He suggests I must be either lying or incompetent in what I wrote, perhaps “deranged,” rather than engaging in the presumption, which I always begin with, that someone with a different viewpoint is competent and acting in good faith. It is fair to call his approach “nasty.”

And it is a double standard. Consider this point. I devote an entire chapter to Justice Scalia’s tone, and the question whether his lack of civility roughened discourse at the Court and in public. In response, to show other Justices could be caustic (though without going through the entire chapter and more of evidence pointing out how much more caustic Scalia was than his colleagues), Whelan writes: “Hasen quotes Justice Sotomayor’s thuggish statement that ‘There are things he said on the bench where if I had a baseball bat, I might have used it.’ (P. 66.)” Even here, Whelan contorts the statement. Here’s the full context of the quote from the book, which shows it was made in jest: “It was Sonia Sotomayor who perhaps best expressed the ambivalence [about Justice Scalia], saying that Scalia’s death was like losing a family member, but jokingly adding, ‘There are things he said on the bench where if I had a baseball bat, I might have used it.’” I wrote further on page 72 that Justice Ruth Bader “Ginsburg’s statement about Scalia, presaging Sotomayor’s ‘baseball bat’ comment, furthered his image as an incorrigible curmudgeon: ‘I love him. But sometimes I’d like to strangle him.’”

I wrote on Twitter to Whelan in response to this that “I think it is interesting that you describe Justice Sotomayor, the only Latina Justice[,] as making a ‘thuggish’ comment But nary a word about Justice Ginsburg saying, also jokingly, that she’d like to ‘strangle’ Scalia sometimes. [Justice Ginsburg wrote the preface to Whelan’s book].” His response was: “Less clear to me, as arguably much more idiomatic. Plus, bashing someone with a baseball bat seems a paradigm of thuggery.”

I think this says it all—his opponent, the liberal Latina Justice Sotomayor is “thuggish,” while another liberal Justice that he has pecuniary and other reasons not to alienate, was just creative with the English language. Give the benefit of the doubt to one’s friends and attribute the most malevolent motives to one’s enemies. Let’s call this bad faith reading of an opponent’s writings the “Whelan Way.”

Don’t expect another response from me to Whelan’s next inevitable 19-part post. As I said at the beginning, readers should read the book and critiques and judge for themselves, now armed with the knowledge of the Whelan Way.

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