Category Archives: Scalia

“A murky law plus a snarky judge equals some memorable judicial sarcasm”

Charles Lane WaPo column:

Eloquence has a rich history in American jurisprudence, as any law student knows. Less famous, perhaps, but more provocative, is the tradition of judicial sarcasm.

In a clever 2015 essay, “The Most Sarcastic Justice,” law professor Richard L. Hasen documented snide Supreme Court opinions from 1986 through 2013, noting that Justice Antonin Scalia, who died in 2016, produced more than his colleagues.

This did not surprise anyone familiar with the conservative stalwart’s dissents; a typical one from 2011 mocked the court’s majority for “mak[ing] itself the obfuscator of last resort.” Still, Scalia’s average rate of 2.78 sneers per year was remarkable — double the next four justices (three liberals and a conservative) combined.

Hasen mused on the practical effect of Scalia’s biting wit, suggesting it sometimes enhanced his points but possibly alienated temperamentally, and ideologically, more moderate justices. Support for that notion comes from research summarized in a 2020 Harvard Business Review article, to the effect that workplace sarcasm “can produce higher levels of perceived conflict.”

Which brings us to recent events in the Supreme Court — of New York, the county-level venue for mundane civil and criminal trials, per that state’s odd judicial nomenclature.

One judge, Jeffrey Zimmerman, made headlines recently by unloading Scalia-level snideness on the legislators who wrote New York’s new bail laws. In a July 24 ruling addressing a gun-crime defendant, he quoted the lyrics of a Grateful Dead song — “Maybe you’ll find direction / Around some corner where it’s been waiting to meet you” — then added that the band’s writers “never read New York’s bail reform statutes,” because those laws offer judges no “direction,” only “obfuscation” and “a confusing mess.”

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“Textualism for Realists:” Michigan Law Review Issue Includes Review of My Justice Scalia Book by Ian Samuel

You can find the 23-page review of my book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, at this link. Although Samuel has much to disagree with, the former Scalia clerk says this: “Hasen’s book ought to be read by everyone with a strong opinion about Justice Scalia, in either direction. Skeptics of Scalia, of course, will find much to nod at. But actually, my recommendation is especially true for the justice’s admirers—who will find much to disagree with in the book, but who nonetheless ought to read it to understand what is likely to be the party line of sophisticated Scalia skeptics in the years to come. And although neither virtue counts for much in the academic press, for what it is worth, the book is very readable and (a virtue Scalia himself would have appreciated) admirably free of filler—Hasen gets to the point.”

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“Balkinization Symposium on Neal Devins and Lawrence Baum, The Company They Keep– Collected Posts”

Devins and Baum, The Company They Keep


Here are the collected posts for our Balkinization symposium on Neal Devins and Lawrence Baum’s new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).

1. Jack Balkin, Introduction to Balkinization Symposium on Neal Devins and Lawrence Baum, The Company They Keep

2. Richard L. Hasen, Siloed Justices and the Law/Politics Divide

3. Jack Balkin, All Hail Ed Meese!

4. John O. McGinnis, The Supreme Court as the Aristocratic Element of a Mixed Regime

5. Linda Greenhouse, The Company We No Longer Keep

6. Frank Pasquale, The Political Theory of a Balanced Bench

7. Sandy Levinson, Partisan Divisions in the Supreme Court: It’s Likely to Get Worse (and There’s No Reason to Think that it Will Necessarily Ever Get Better)

8. Mark Graber, Newtonian and Anti-Newtonian Political and Judicial Polarization

9. Rick Pildes, What is Judicial Courage?

10. Neal Devins and Larry Baum, Justices and Their Audiences

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According to New Book on Justice O’Connor, J. Scalia Thought Equal Protection Rationale of Bush v. Gore Was “as We Say in Brooklyn, a Piece of Shit”

New book is “First” by Evan Thomas and here’s the excerpt, courtesy of Mike Sacks:

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On Third Anniversary of Justice Scalia’s Death, His Influence is Greater Than Ever

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“Liberals Must Embrace a Bankrupt Judicial Philosophy to Have Any Chance of Winning at the Supreme Court”

I have written this piece for Slate. It begins:

It’s a great time for liberals to brush up on their knowledge of originalism and textualism. These judicial theories, which say that judges should interpret constitutional provisions or statutes by looking solely at their “original public meaning,” are embraced by many of the conservative judges and justices appointed by President Donald Trump who have begun to build a stranglehold on the federal judiciary. Despite recent work demonstrating the bankruptcy of these approaches, liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories…..

In a terrific new book, Originalism as Faith, Georgia State University law professor Eric Segall demolishes the case for originalist constitutional interpretation. Segall traces the long history of originalist thought in American legal circles from the 19th century to the present time. The heart of the book demonstrates the bankruptcy of the originalist approach.

Segall’s key thesis is that originalism does not constrain in the hands of judges purporting to use it. …

a recent podcast conversation, Indiana University Maurer School of Law professor Ian Samuel made the point that a deeply conservative justice believing he or she is constrained by originalism or textualism is better than a justice like Samuel Alito, who is also deeply conservative but not similarly constrained. I continue to believe that in the core cases of greatest importance to conservatives, originalism and textualism are hardly constraining. But Samuel is right about that subset of second-tier cases.

And so it’s time for liberals to dust off the old dictionaries and put on their hard hats for work in the construction zone, despite Segall’s and others’ trenchant critiques. The work won’t be pretty, but it may sometimes get the job done.

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Speaking at Princeton November 9 on My Book on Justice Scalia’s Legacy

Princeton Program in Law and Public Affairs:

The Justice of Contradictions: Antonin Scalia and the Politics of Disruption

Rick Hasen, University of California, Irvine School of Law

Fri, 11/09/2018 – 12:00pm
Robertson Hall, Bowl 16
Princeton University Community: Faculty, Fellows, Students, Staff

book coverMembers of the Princeton community receive priority; members of the public are welcome if space is available. Lunch is provided.

RSVP required: Click Here

Please join us for a lunchtime book talk with Rick Hasen, to discuss The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

From Yale University Press: “Engaging but caustic and openly ideological, Antonin Scalia was among the most influential justices ever to serve on the United States Supreme Court. In this fascinating new book, legal scholar Richard L. Hasen assesses Scalia’s complex legacy as a conservative legal thinker and disruptive public intellectual.  The left saw Scalia as an unscrupulous foe who amplified his judicial role with scathing dissents and outrageous public comments. The right viewed him as a rare principled justice committed to neutral tools of constitutional and statutory interpretation. Hasen provides a more nuanced perspective, demonstrating how Scalia was crucial to reshaping jurisprudence on issues from abortion to gun rights to separation of powers. A jumble of contradictions, Scalia promised neutral tools to legitimize the Supreme Court, but his jurisprudence and confrontational style moved the Court to the right, alienated potential allies, and helped to delegitimize the institution he was trying to save.”

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