Posner v. Scalia, Round V

August 30th, 2012

There is no love lost between Justice Scalia and Judge Posner. After D.C. v. Heller, Posner wrote a lengthy piece in The New Republic assailing Scalia’s originalism, and comparing this apparent triumph or originalism to Roe v. Wade (Judge Wilkinson echoed these sentiments). During the 2008 Federalist Society National Lawyer Convention, after Heller, Scalia was supposed to debate Posner. However, a few weeks before the debate, Scalia pulled out, and FedSoc deftly slotted in then-Judge McConnell. Rumor had it that Scalia did not want to go up against Posner because of his attack in Heller. Instead Scalia had a book signing for his previous book with Garner, Making The Case. This term, regarding Justice Scalia’s dissent in Arizona v. United States, Posner said that “it gives that part of the opinion an air of a campaign speech.” When asked about that comment on a book store, Scalia pulled rank.

SCALIA: He is a court of the appeals judge, isn’t he?


SCALIA: He doesn’t sit in judgment of my opinions as far as I’m concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That’s what happens.

In the latest duel (let’s call it Round V) between these former Reagan-appointed Judges (one appointed to SCOTUS, the other prominently not appointed), Posner has struck back with a stinging critiqueof Scalia’s new book with Bryan Garner, Reading Law.

(Form this point on, Posner’s attacks are directed at Scalia–only rarely Garner, so I won’t include Bryan in the discussion).

Posner launches right onto their method of textual originalism, which is far from “objective” or “politically neutral.”

One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

Posner continues on a common attack of originalism–that much of the Court’s jurisprudence, here with respect to the freedom fo speech and flag burning, is “exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.”

Next, Posner reiterates a point he made after Heller–“Judges are not competent historians”–and works in some behavior economics-style thinking, referring to “motivated thinking” (see Danny Kahnemans “Thinking Fast and Slow”).

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.

Posner then assails Scalia for a citing 18th century legislative history–a point I raised in an article back in law school–even though he rejects modern-day legislative history.

Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

I offered a theory in this article why this may be consistent.

Next, Posner riffs on Easterbrook’s foreword to the book, contending that when meaning is lost to time, such as the case with Heller, democracy should control:

 His argument derives new support from a surprising source: Judge Easterbrook’s foreword to Scalia and Garner’s book. The foreword lauds the book to the skies, but toward the end it strikes the following subversive note: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” The “living political community” in Heller consisted of the elected officials, and the electorate, of the District of Columbia.

Easterbrook goes on: “When the original meaning is lost in the passage of time…the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint, which Scalia and Garner endorse by saying that a statute’s unconstitutionality must be “clearly shown”—which it was not in Heller. Justice Scalia’s interpretation of the Second Amendment probably is erroneous, but one who doubts this should conclude that the relevant meaning of the amendment had been “lost in the passage of time,” and so the Court should have let the District of Columbia’s gun ordinance stand.

Posner refers to Blackstone, John Marshall, and Holmes, as “illuminati” and “loose constructionists, a method he advocated in his 2008 critique of Heller: “The older the constitutional provision and the more the environment has changed since enactment, the more appropriate is the method of loose construction.”

This paragraph is one of the most realist, attacks on the process of judging–shockingly from a judge!

It is possible to glean from judges who actually are loose constructionists the occasional paean to textualism, but it is naïve to think that judges believe everything they say, especially when speaking ex cathedra (that is, in their judicial opinions). Judges tend to deny the creative—the legislative—dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis. The fact that loose constructionists sometimes publicly endorse textualism is evidence only that judges are, for strategic reasons, often not candid.

This is not just directed at Scalia. This applies to all judges who purport to hide behind any jurisprudence other than Posner’s preferred “loose constructionism.”

Next, Posner makes a common refrain of liberals: “It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist.”

Jack Balkin has made a similar point that a jurisprudence can’t be ashamed to include a canonical case like Brown. And–oh snap–Posner takes a dig at then-Professor-and-former-Judge McConnell’s article on the originalist case for Brown, stating that McConnell is not a historian!

They do not mention the powerful criticism of that article by Michael Klarman, a leading legal historian—which the author of the article they cite, Michael McConnell, is not, although he is a distinguished constitutional law professor and a former federal judge. And, ironically, McConnell based his analysis on the legislative history of the Fourteenth Amendment, which should be anathema to Scalia.

I noted above that McConnell, one of the nicest, and most gracious people you will ever meet, subbed in for Scalia during the 2008 FedSoc Convention to debate Posner.

Posner charges Scalia and Garner with intentionally omitting contrary evdience!

OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device.

That is a serious, serious charge. Brian Leiter, with his usual, let’s say, wit, claims that his colleague’s review “would finish the career of the academic who authored the book in question, and might even raise questions about scholarly fraud.”

Posner asserts that not only are Scalia and Garner’s arguments unpersuasive, they misread and selective quote from the very opinions the duo use to support their arguments.

Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne)that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.

This is a serious, serious allegation. When you start reading the other cases cited, that means you have a lack of faith in the judgment. When I was clerking, the second I found one citation that was off (whether they misstated a case, or cited evidence not in the record), I checked every citation. The first error, or hint that something off, made me scrutinize the work so much closer. This seems to have happened to Posner.

How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?

Posner takes apart a number of cases on similar grounds. If these claims are accurate, this is very, very embarrassing to Scalia and Garner. Did they not have law clerks or research assistants shepardize or check the citations?

Posner calls Scalia out on the use of fifty-seven (like Heinz Ketchup!) “cannons of construction”:

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

Posner continues by showing all the ways that cannons and other maxims of construction are not grounded in textualism, and that “common law floats in and out of their analysis, unpredictably.”

The parting blow is fatal.

Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.

In fairness to the authors, Scalia says in his introduction that readers should not do what Posner did–compare his statements in his book with his prior opinions. Scalia wrote that his opinion may change “because wisdom continues to come late or because a judge must be open to persuasion by council.”

Though, I do not think that adresses all, or even most of Posner’s criticisms.

Posner deconstructed every last semblance of Scalia’s formalism with devastating accuracy. I dare say this wasn’t even a close match. It was a jurisprudential bloodbath.

So I must close by quoting Posner on Blackstone on bloodletting in Bologna:

In the Commentaries we read that a medieval law of Bologna stating that “whoever drew blood in the streets should be punished with the utmost severity” should not be interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.” Blackstone explained that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law…. As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them” (emphasis added).

Update: This exchange between Ted Frank and Bryan Garner on Twitter suggests that Garner was blindsided by Posner’s review. Also, Garner’s response is non-responsive.

Update: In subsequent posts, I realized that many of Judge Posner’s claims were inaccurate. See here, here, and here. I did not endorse them here, and do not endorse them now.