Scalia & Garner v. Posner, Rounds VII and VIII

September 6th, 2012

Following the last two volleys in this bout, Judge Posner offered some remarks to David Lat, and Bryan Garner wrote a post directly responding to Judge Posner’s blistering critique.

First, Posner had this to say to ATL:

There is no personal animosity between Justice Scalia and me, or at least not on my side — I haven’t seen him for five or six years (we were at a conference on national security in Ottawa about that long ago). As you point out, we were colleagues in the 1970s at the U. of C. law school before we both became judges. I think I’ve described him in print as the most influential Supreme Court Justice in the period since his appointment, and I certainly adhere to that view.

I suppose it’s unusual for a lower court judge to criticize judicial or extra-judicial work by a Supreme Court Justice in public; but recall that Judge Wilkinson wrote a very critical law review article about Justice Scalia’s opinion in the Heller case. (I wrote a critical article about the opinion, as well, for the New Republic.) It’s probably not an accident that both Judge Wilkinson and I are former academics, to whom disagreement in print, without personal animosity having engendered it, comes naturally.

Posner answer certainly leaves open the impression that Scalia harbors animosity towards Posner. As I noted in my post about an earlier round, after Heller, Scalia ducked out of a FedSoc debate with Judge Posner. That would’ve been a nice time to see him 4 years ago. To Posner’s second point, most of what he does is sui generis. There is no other federal judge who does what he does. Certainly Wilkinson wrote that one article, but it was not pointed directly against Scalia–as was Posner’s–but rather attacked Scalia’s jurisprudence of originalism. Very different beasts.

As a plebe in academia, I think it is safe for me to say that this type of takedown is not normal. In fact, even if personal animosity did not cause the review, it will almost result in personal animosity from those attacked.

And that brings us to the next slap in this bout. Garner writes back in this post at LawProse.

In his response, Whelan states that Scalia and Garner merely used cases as examples of the canons of construction, rather than exemplars:

Posner instead faults Scalia and Garner for not trotting down the irrelevant and confused pathways that Posner pursues. Posner blames them for not quoting a statement that Posner speculates may offer insight into a supposed motivation behind the decision. He also thinks it noteworthy that the opinion “referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.” (This is yet another example of Posner’s confusing the reader into thinking that Scalia and Garner offer the cases as “exemplars … of textual originalism” generally, rather than as illustrations of specific canons.)

To the extent that Whelan is correct, and that Scalia and Garner merely cite portions of cases as illustrations of a textualist canon, than Posner is absolutely wrong. If Scalia and Garner cite these cases without any kind of caveat, then Posner’s attack is somewhat apt.

Garner suggests that Whelan is correct:

 Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism—through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision.

Reading Law is a normative, prescriptive book, as we’re at some pains to emphasize on page 9: “Our approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language.” So in citing examples, we were much more interested in the textual problems posed than in the solutions that courts provided. Instead, we explained our solutions, often noting points of agreement and disagreement with the courts that actually decided the cases.

If Garner is correct about this, than Posner was absolutely off base. Posner wrote:

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

Garner responds in kind:

   Adding insult to distortion, Judge Posner claims that we “later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout the book.” To the contrary, we do not retreat. And nuance is not equivocation. The assertion that we “retreat” is consistent with a pattern of distortion exhibited throughout his review.

This piece has just a slight flare of Scalia-rhetoric. I wonder if the Justice took some part in this response.

Garner also explores how he and Justice Scalia checked their facts. It seems quite thorough:

My coauthor and I knew that a book on textualism would be inimical—if not seriously threatening—to those who promote nontextual means of deciding cases in which a governing legal text is at issue. It would inevitably be attacked.
We therefore took precautions. Please bear with me as I say a word about them. Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book. Meanwhile, both Justice Scalia and I reread many cases where either of us doubted what had been said about them.

Totally unrelated to claims of misrepresentation of precedents, Garner goes on to respond to a criticism of Heller that I think is apt–that Scalia relied on legislative history:

Judge Posner points to a supposed contradiction: that the book condemns the use of legislative history, yet “Scalia is doing legislative history when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller.” Judge Posner knows very well that “legislative history” does not embrace what theHeller opinion used—the history of the times when the legislation (or constitutional provision) was adopted, including the understandings reflected in contemporaneous legislation and scholarly commentary. “Legislative history” means the floor debates, committee hearings, and committee reports of the legislature or convention that adopted or proposed the text in question. It was not the Court’s opinion in Heller but Justice Stevens’s dissent that used (and, we think, misread) the Second Amendment’s drafting history. Lawyers know the distinction, but Posner’s depiction of a contradiction where there is none, in a magazine directed to nonlawyers, preys on the unknowledgeable.

In Heller, where the key question was what the Second Amendment meant at the time of its ratification, Scalia spent quite a bit of time looking at post-enactment legislative history following the Civil War of the right to keep and bear arms. This history was more accurate for McDonald, not Heller. Stevens in dissent, in my estimation, correctly wrote:

“Although it gives short shrift to the drafting history of the Second Amendment the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; post enactment commentary on the Second Amendment; and post-Civil War legislative history. All of these sources shed only indirect light on the question before us, and in any event offer little support for the Court’s conclusion.”

Anyway, back to the bench slap at hand, let’s see if Posner offers an apology:

Edward Whelan has demanded that Judge Posner run a prominent retraction and apology. That would be gratifying, since reputations can be marred by such a high‑profile literary rampage. But I’m not holding my breath.

Judge Posner here may have jumped the shark.

Update: Whelan comments on Garner’s repost.
Before I turn to these examples, let me highlight that Bryan Garner yesterday posted online his own response to Posner, a response that soundly complains that Posner displays a “tendentious hostility,” that his review goes “seriously off the rails,” and that he commits multiple “blunders” that a “little fact-checking would have prevented.” (H/t How Appealing.) Garner’s critique is, I’m pleased to note, similar to mine (and Garner specifically praises my Part 2 and Part 3 posts for doing a “masterly job of demonstrating why the six [case] examples that Judge Posner assails … are entirely correct.”) There are some matters that Garner addresses that I had already been planning to get to, so I won’t let the unsurprising fact that we independently arrived at the same correct observations deter me from covering some of the same ground.
Update: Whelan responds again (and collects all his posts here).
It’s bad enough that the far more appropriate question is mine: “How many readers of Posner’s essay will do what I have done—read the opinions that he claims Scalia and Garner distort and discover that Posner is the one doing the distorting?” But the last clause of Posner’s question indicates that he somehow thinks that Scalia and Garner are trying to describe “how judges actually interpret legal texts.” In fact, their “approach is unapologetically normativeprescribing what, in our view, courts ought to do with operative language” (p. 9 (emphasis added). They are reacting against, and trying to remedy, the widespread judicial “neglect” of “established methods of judicial interpretation.” . . .
I have not attempted in these posts to provide an exhaustive account of Posner’s errors. I have instead focused on those errors that show that his most incendiary charge—that Scalia and Garner have misrepresented the cases they cite—is false and that his review is untrustworthy and, indeed, incompetent.
He doesn’t add much new to the debate, other than to invite Posner to respond.
As usual, I will be happy to respond to any substantive critique of my own posts and, if I determine that I have made any errors, to acknowledge them openly and correct them. I’ll note that Posner has his own blog available to defend himself (and to make appropriate corrections and apologies). Further, if he asks, I will post verbatim on Bench Memos any response he has to my posts.