Oh, and you thought this spat was over with Round XII?
Tony Mauro reports that Judge Posner had the occassion to discuss his battle royale with Justice Scalia during a speech he gave at a symposium on the Supreme Court at Chicago-Kent.
Posner’s announced topic was the Supreme Court and “celebrity culture,” which seemed to forecast another round in his high-profile feud with Scalia. The spat began in August with acritical review of Scalia’s book by Posner in The New Republic. Scalia returned fire, accusing Posner of lying, and it turned into a long-running public debate between the two legal celebrities.
As it turned out, Posner did not mention the Scalia imbroglio until he was asked about it after his talk. Posner said he had been asked “very innocently” by the magazine to review the book Scalia co-authored with Bryan Garner on the subject of interpreting legal texts. Posner checked some of the book’s citations and found several examples of what he said were misstatements of what the cited precedents actually said. Posner said he was “surprised” by Scalia’s reaction, and allowed that he did not much like being called a liar. But, he shrugged, “I’m not suing him for libel.”
I’m glad Judge Posner is not interested in libel suits–especially since he reads this blog.
Justice Scalia said nothing about Judge Posner during his talk at the Federalist Society convention last week–Leonard Leo likely filtered out any such questions.
Interestingly, Posner criticized the Justices for offering opinions outside their area of expertise.
Equally undignified, according to Posner, is the justices’ participation in fictional moot courts. He singled out a mock court-martial of General Custer for losing the Battle of the Little Big Horn. Forthat 1998 event, Justice Ruth Bader Ginsburg donned a post-Civil War uniform.
“Just because you are prominent in one field,” Posner said, does not mean that “you can offer irresponsible opinions in another field.”
This may as well be Posner’s criticism against originalists generally. He doesn’t think judges are experts in history, so they should not offer opinions in this area. I could say the same thing about judges deciding cases concerning antitrust (though Judge Posner can handle his own on that front).
As Posner offered his critical opinions of the high court, it occurred to several members of the audience that Posner, like the justices he was criticizing, can dominate oral arguments with aggressive and frequent questioning. And as author of more than 40 books, Posner has also opined about subjects ranging from economics to sex and morality, outside the professional competency of most judges.
Yet, Posner commented that he has never been asked to recuse for opinions he expressed in his books.
During a question-and-answer period afterward, Chicago-Kent professor Carolyn Shapiro, who once clerked for Posner and for Justice Stephen Breyer, had the temerity to ask Posner how he decides what topics he feels qualified to write about. Posner said he writes about subjects he feels comfortable with, adding that his broad range of writing “has never gotten me in trouble with litigants.” He explained that he has never been asked to recuse himself based on opinions expressed in his books.
This is somewhat surprising. I suppose litigants may already know the answer to such a question, and wish to spare the Judge’s ire.
More coverage from Christopher Schmidt.