From a very interesting interview with the inestimable Brian Lamb, Scalia says he is not worried that professors may point out that his own opinions may conflict with the rules he wrote in his new book with Garner:
LAMB: You’re judicial author – there’s a co-author and you’re the judicial author, ”knows there are some, and fears there might be many opinions, that he has joined or written over the past 30 years that contradict what is written here – whether because of the demands of stare decisis or because wisdom has come late.”
Second part, ”Were still your judicial author,” that’s you, ”does not swear that the opinions that he joins or writes in the future will comply with what is written here, whether because of stare decisis, because wisdom continues to come late or because a judge must be open to persuasion by council.”
And then you finish this by saying, ”Yet, the prospect of gotcha’s for past and future inconsistencies holds no fear.”
SCALIA: Yes. I thought that was pretty clever. Didn’t you?
LAMB: Well, I thought that was – it was food for questions.
SCALIA: I worry about people pointing out, you know, leading up to say, ”Well, you say thus and so and in your opinion 22 years ago … ” I didn’t review all of my opinions to be very sure that every one of them comports with the truth set forth here and I didn’t want to have to do that.
And, for the future, any judge has to be open to persuasion, to acknowledge his past ignorance if necessary. So, I, you know, I won’t swear that I’ll follow this in the future but I probably will.
LAMB: Gotcha’s.
SCALIA: Gotcha’s.
LAMB: Who – who deliver to you gotcha’s in your life?
SCALIA: Apart from my wife?
LAMB: Yes.
SCALIA: I would expect gotcha’s to come principally from academia; many in academia. Probably very many – most of academia does not agree with the theory of interpretation set forth in this book.
LAMB: Why?
SCALIA: Why? Because they prefer theories that augment the – the power of the judge and hence the power of the law professor. The theory of interpretation set forth here is a very – a very humbling one. It does not leave a whole lot up to the policy discretion.
In fact, it leaves nothing up to his policy discretion. The name of the game is to give the fairest reading to what the people’s representatives have enacted. That’s what a judge is supposed to do.
Now, that is an uncongenial approach to someone who wants to do good, who wants to use his office as it can be used to do things that he thinks are good for the society. If one has that zeal, one will not like the approach set forth in this book.