When You're Getting Reamed For Saying It's OK To Compare Gay People To Murderers, Doubling Down On Calling Justice Sotomayor 'Thuggish' Ought To Fix Things

Ed Whelan's latest defense of Scalia's legacy provides an unwittingly thorough rebuke of Scalia's brand of textualism.

Maybe it’s time for Ed Whelan to hang up the Twitter spurs for a while. The former Scalia clerk and National Review legal pundit decided to post a thorough “review” of Professor Rick Hasen’s new book, The Justice of Contradictions (affiliate link). It’s worth placing “review” in quotation marks because Whelan’s broadside amounted to less a review than a breathless fanboy defense branding Scalia’s most despicable published opinions as fake news.

But then things go really, really off the rails for Ed.

So it starts out with the third part of Whelan’s omnibus effort to rehabilitate Justice Scalia in light of Hasen’s thoroughly researched tome. Most of Whelan’s critiques are wild reaches, the sort of sad attempt to cobble together a jigsaw puzzle of nits and out-of-context quibbles into a grand unifying conspiracy theory against his judge that’s almost admirable because it clearly comes from a place of love, but one passage is just so bonkers it boggles the mind that it made it to print. In criticizing Hasen’s book for calling out Justice Scalia’s penchant for littering the judicial history of this country with vile anti-gay rhetoric, Whelan writes:

Here’s the supposedly deeply offensive passage from Lawrence:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed 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.

What Hasen and others overlook is that the adjective “so-called” operates to disparage the label “homosexual agenda.” So far from embracing that label, Scalia is distancing himself from it.

So very, very far from. By the way, 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 Whelan’s refusal to acknowledge Scalia’s anti-gay rhetoric sparked this exchange with Professor Eric Segall:

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Wha?

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Dean Rodriguez got in on the act too:

But Whelan wasn’t going to let it go. So he beat on, boats against the current, borne back ceaselessly into the fictional, cherry-picked vision of the Founding:

Right… then he could have equated sodomy with anti-polygamy laws. Except that would make the point Whelan is making, not the point Scalia was making.

Another of Whelan’s critiques of Hasen is that Scalia wasn’t concocting all new theories of interpretation, but was actually returning the law to its traditional interpretive standards. Well, those traditional canons talk about how word choice matters, and when Scalia decided to make his comparison — er, “analogy” — with murder, that wasn’t a rhetorical choice devoid of meaning.

It’s almost as though jurists have long understood that words impart meaning beyond their life as acontextual playthings to subject to linguistic contortions.

But Whelan’s tragicomic foray into gay rights was only a slice of the full range of lunacy on display. Also from Whelan’s screed of a review:

In support of his charge that Scalia’s “opinions and … public comments served to coarsen judicial discourse,” 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.”

Yeah, calling the Latinx woman on the Court a thug is probably a sound strategy.

After the first tweet pointing out how problematic this is, Whelan doubles down.

There are 11 words there. Whelan picked out three and pretended like that ended the discussion. Twitter really needs a TKO function where we can make people stop for their own sake.

Hasen tried to explain Whelan’s problem calmly and rationally:

At this point, Whelan admitted these issues and apologized. Just kidding, he doubled down on the dog whistling!

Astounding. You know what? Let’s go back to that exchange above and add “idiomatic” to the list of adjectives.

That’s the nicest “your racism is showing” I’ve read in a long time. That said, I think Dean Rodriguez got in the best own.

But here we are again. Two nearly identical textual artifacts: one “idiomatic” and another “thuggish.”

Remember, textualists are always precise because they care only about what the words reasonably mean. It’s not like there’s any veiled intent behind words or anything.


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.