Scalia & Garner v. Posner, Round IX and X

September 11th, 2012

Man, this bout is going on longer than the Rocky movies.

First, David Lat links to an article from the Daily Journal that reports that at an event in Nevada, Justice Scalia referred to Posner’s review as a “hatchet job.”

While there were few open signs of tension at Thursday’s event, Scalia at one point referred to the review as “Richard Posner’s recent hatchet job.”

“You can distort any principle of interpretation,” [Justice Scalia] said, “but the difference is this: Textualism does not invite the judge to apply his own willful predilections, whereas every other philosophy — including Posner’s — invites the judge to do what he thinks is good, what he thinks is right.”

Here, Scalia parries to Posner’s thrust (for those of you who get that reference, major props).

But, not to be outdone by Bryan Garner’s response, which was reprinted in The New Republic (along with this awesome photo of Nino and Garner hard at work), Posner strikes back hard.

Posner leads off with a silly ad hominem attack at Ed Whelan, who has written a number of posts defending his former boss, Scalia.

Bryan Garner’s letter repeats criticisms by the National Review blogger Ed Whelan, a former Scalia law clerk who is the head of the Ethics and Public Policy Center, an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.

Wow. This isn’t just a jab at Whelan. This is also a jab at anyone who has strong views on abortion, stem cell research, and same sex marriage (not the same thing, but related to homosexuality).

Whelan replies with a post titled “More Posner Delusions.”

I don’t in fact  believe, and I don’t believe that I have ever said anything that can fairly be reduced to, the proposition that “homosexuality … is destroying the American family.” Quite to the contrary, I have written that the collapse of our marriage culture is “largely the result of what heterosexuals have done to marriage in recent decades.” Posner of course—consistent with his usual pattern of sloppiness—doesn’t bother to cite anything for his false assertion.

As for Posner’s disparagement of the think tank I head, the Ethics and Public Policy Center: EPPC may fairly be described as conservative, but I don’t see how anyone familiar with the American political spectrum could fairly describe it as “extreme conservative.” His claim that we are “preoccupied with … affronts to conservative theology” is inane: our scholars, of various faiths (or no faith), set forth their public-policy positions on grounds of reason, not theology. The claim that we are “preoccupied” with certain issues of course begs the question what the proper level of attention to such issues is, but the reader reviewing our website and the work of our scholars should find Posner’s claim baffling.

But Posner didn’t stop with jabs at Whelan. He next questioned the book’s fact-checking in what can only be described as calling out Garner as a liar.

I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. The book is riddled with inaccuracies, illustrating the adage that too many cooks spoil the broth. The Acknowledgments thank nine “Garner Law Scholars” at a Texas law school who “briefed dozens of cases for our [the authors’] consideration.” I am guessing the Garner Law Scholars were the source of many of the mistakes.

The Garner Law Scholars at the unidentified Texas law school are students at the Southern Methodist University School of Law, where Garner is a professor (Posner graciously does not name them). From a release on the SMU site:

SMU Dedman Law provides research support for new book by Supreme Court Justice Scalia, Bryan Garner

Professor Garner, editor-in-chief of Black’s Law Dictionary, has been associated with SMU Dedman School of Law since 1990 and became a Distinguished Research Professor in 2008. In the book’s opening acknowledgements, Scalia and Garner thank Dedman Law Professor Lackland H. Bloom for his critical commentary.

SMU law students also contributed to the book. Dean Attanasio provided the funding for five law students to amass over 1,500 scholarly articles and other publications on statutory interpretation. These publications comprise the bulk of the book’s bibliography, which is the most comprehensive ever published on the interpretation of legal texts.

Dean John B. Attanasio is also thanked for forming the Garner Law Scholar program at SMU Dedman School of Law. “The Garner Law Scholars at the Southern Methodist University Dedman School of Law briefed dozens of cases for our consideration,” said Scalia and Garner in the opening acknowledgments of Reading Law: The Interpretation of Legal Texts.

So Posner just called out a bunch of SMU students as making many mistakes.

Posner continues with what I think is an accurate point–the fact that Scalia and Garner cite cases that are not perfect exemplars of textualism undermines their point.

Garner says that what I think are mistakes in the book’s description of cases are merely the result of the authors’ decision to “exclude other factors besides the canon” (statutory principle) that each case illustrates “because the examples are there merely to show how each particular canon works” and so the fact “that a given court considered other factors besides the canon is quite irrelevant to our purposes.” That is untrue. When they say that a court “perversely held that roosters are not ‘animals’” they are saying that a court erred by failing to follow a dictionary definition; in fact the court said that roosters are animals, but then gave reasons why this was not dispositive, reasons Scalia and Garner ignore.

Garner and Whelan counter that their book is normativethis is what judges should do, and that it is impossible to find perfect exemplars.

Garner now says “it would be very hard to find examples in which a single canon was the sole basis for the decision.” Precisely! The authors aren’t going to pin themselves down to a canon that might generate a result they don’t like. They want to play with 57 canons, many of them as I pointed out not textual.

In other words, Posner replies that if no courts do it, then the entire enterprise of textualism is silly. This, I think, is the most important jurisprudential debate that Posner has mired with his sharp rhetoric. Tragically, it is a point that needs more light in a clean debate. This will not be a clean debate.

The rest of Posner’s reply is just pointing out other errors, though his rejoinder about Heller is absolutely correct.

Garner wrote:

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.

This is incorrect for the reason Posner states:

Speaking of legislative history, Garner says that I “prey on the unknowledgeable” when I say that Justice Scalia was doing “legislative history” in his opinion that holds that the Second Amendment creates a right to own guns for personal self-defense (District of Columbia v. Heller). Garner defines legislative history more narrowly than I would, to mean only “drafting history”—but Scalia did discuss the amendment’s drafting history in his opinion and claimed that it supported his interpretation of the amendment.

Likewise, Justice Stevens pointed out in his Heller dissent:

“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.”

I wonder what the next blow in this battle will be. I don’t think Garner or Whelan have anything less. Posner is not backing down. Scalia called it a hatchet job. It’s on.

Now, I think it is safe to say that Scalia will never again hire a Posner clerk. Though, I wonder if Posner’s chicanery will affect any of the other Justice’s hiring techniques. The justices, though they disagree with Scalia, can’t possibly sanction this open and dirty airing of laundry. I wonder. Not that Posner would care. From what I hear, clerking from him is less than ideal, as he does all the writing, and gives clerks surprisingly little autonomy. That may be a good thing for justice, but it’s bad for a precocious law clerk.

Know what would be awesome? The feud that would ensue if Posner reviewed Akhil Amar’s new book the same way he reviewed Scalia and Garner’s book.

Update: Whelan posts another substantive reply to Posner’s recent piece.

Indeed, to put the matter somewhat delicately, Posner’s review, his response to Garner, and his ad hominem ducking of my critique would seem to demonstrate that Posner is, on the matter of Scalia and Garner’s book, beyond the reach of reason.

Update: At the Originalism Blog, Mike Ramsay notes that he would respond to Posner’s pieces, but he has a case pending before the 7th Circuit:

Note: Because I am participating in a case pending in the Seventh Circuit, I have not felt it appropriate to comment on the exchanges prompted by Judge Posner’s review, and I continue that policy here.

Ramsay said a lot more by saying nothing. First, the fact that a Judge takes so many public opinions forces litigants before him to be respectful of those opinions. Posner is actually chilling speech! But what is even more implicit in Ramsay’s comment is the fear that Posner could retaliate against a litigant for taking a critical position of the judge in an article he wrote! That is very, very damning.

Update: Garned noted on Twitter that he only changed one sentence for the second-edition of Reading Law.

As Ann Althouse noted, this book is $40 on Kindle! I will wait for the price to drop, or maybe for the new-and-improved second edition.