“Keynote Address: Judging the Political and Political Judging: Justice Scalia as Case Study”

I have posted this draft on SSRN (forthcoming: Chicago-Kent Law Review). Here is the abstract:

This Address builds upon ideas first presented in Richard L. Hasen, After Scalia: The Future of United States Election Law, 17 AMERIKA HŌ 1 (Koji Higashikawa trans., 2017) (Japan), and RICHARD L. HASEN, THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION (2018). It is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law.

It considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance, on the one hand, to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. In this context, I argue that the defects in the political process he sometimes flagged appeared to do little work, and that his decisions are better understood by his ideological commitments to what Chicago-Kent Professor Steven Heyman calls “conservative libertarianism.”[1] Scalia’s views on self-dealing appeared to reflect rather than drive his legal analysis.

Part II describes Justice Scalia’s contradictory approaches on questions of self-dealing and incumbency. Part III argues that, the contradictions lined up with the Justice’s ideological and partisan commitments, and that this is hardly unique to Justice Scalia. Finally, Part IV offers three lessons to be learned from this case study for the interaction of the Court, the political branches, and election law.

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