Scalia v. Posner, Round XIII: Nino Strikes Back

September 21st, 2012

MTV? Please! Celebrity Death Match: Scalia v. Posner. I will raise whatever funds necessary to make that happen. Or maybe Greenbag can make Bobblehead Rock’em Sock’em Jurists so the two Judges can spar. They definitely need to take this outside.

Following Round 12, we now have Round 13! (Reuters calls it Scalia v. Posner: Round 4. I’m glad they are using a similar naming scheme but their numbering is WAY off).

This time Justice Scalia provided what can only be described as a press release to Reuters in response to Posner’s statement:

On Friday, Scalia retorted with a two-paragraph written statement, and that may be the last word on this matter: Posner, shown a copy of Scalia’s latest statement, declined to make further comment.

What follows is Scalia’s statement. Below that are links to an article about Scalia’s Monday interview with Reuters and to Posner’s response.

This is why judges place a limit on the number of reply and sur-reply briefs parties can file! So what did Scalia say?

I stand by my statement.

Judge Posner did not simply write, as his justification would lead one to believe, that I used legislative history. He wrote that although I am a “pertinacious critic” of legislative history, I use it whenever I try to determine the meaning of 18th-century texts. To assess whether that charge of inconsistency is true, it is what I mean by legislative history, not what Judge Posner means, that must be consulted. And I always use it to mean what lawyers understand by the term: not (what Judge Posner thinks it means) “the background and events leading to the enactment of a statute,” but the hearings, debates, and committee reports in the body that adopted the text at issue, pertaining to the meaning of that text.

As for Judge Posner’s concluding assertion that at least in one case (District of Columbia v. Heller) I did use legislative history in the sense I abhor: the reader need only consult the cited pages to determine that even this is false.

This should be the end. Or not. Following Rounds VVIVII, VIIIIX, X, XI and XII, I am getting tired!

Update: And this from Garner on Twitter:

To be precise, that message is 138 character, so Garner lied. He had two more characters to go.