Posner v. Scalia, Round XV

June 24th, 2013

This simmering debate has remained dormant since (by my count) November 23, 2012. It’s back!

In Slate’s Breakfast Table, Judge Posner took exception with Scalia’s opinions in Decker v. Northwest Environmental Defense Center:

 Justice Antonin Scalia dissented, saying that to defer to an agency’s interpretation of its own regulations “violate[s] a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands.” Scalia’s concern is that the agency will issue a vague regulation, intending to alter it by interpretation, thereby avoiding the required procedures (such as notice of a proposed regulation, and an opportunity for people who may be affected by it to comment).

That is a valid concern, but it doesn’t justify a blanket refusal to grant some deference, some leeway, to agency interpretations of their own regulations.

Posner makes an interesting point that I haven’t seen stated this way before: courts both write law (through common law opinions), and interpret it later. Why shouldn’t agencies have the same ability?

Note, too, that the “fundamental principle” (“that the power to write a law and the power to interpret it cannot rest in the same hands”) is regularly ignored in judicial decisions joined or authored by Justice Scalia. Courts “write law” whenever they create or alter common law doctrines, and, realistically the Supreme Court writes law when it interprets the brief, frequently enigmatic, and defenseless text of the Constitution. And having written the law, courts feel free to alter it in later cases. So why not agencies, unless they are circumventing procedures designed to make regulations more deliberate and circumspect?

Next, Posner was not impressed by Scalia’s opinion in Myriad, where he chose not to join the portion of the opinion that explores genetics.

 One might expect a judge to be willing to make the rather modest investment in time and intellectual effort required to puzzle out the majority’s description. Yet some commentators, rather than criticizing Scalia for being unwilling to do so, have commended him for candor in acknowledging his scientific ignorance.

But if Justice Scalia was unwilling to make the necessary effort to understand the discussion of genetics in the majority opinion, how was he able to understand the discussion of genetics in the lower-court opinions or the friend-of-the-court briefs submitted by experts such as James Watson, the co-discoverer of the double helix, the foundation of modern genetic theory? I have dipped into what Scalia calls the “expert” briefs, and their discussions of genetics tend to be as technical as the most technical parts of the majority opinion. So if Scalia understood those discussions, why wouldn’t that enable him to understand the discussion of genetics in the majority opinion? If he didn’t understand the briefs, on what basis could he join the decision?

Posner stresses that all of the Justices, Breyer perhaps excepted, do not have a strong grasp of science.

Although Scalia may be the extreme case, the justices of the Supreme Court (Justice Breyer may be the only exception), and federal judges generally (state judges as well), tend to be uncomfortable with science and technology. Scalia’s discomfort with biochemistry seems of a piece with his embrace of “familiar tools of textual interpretation”—familiar to judges because the tools do not require any scientific understanding. But neither can they replace a willingness to learn a bit of science, at least.

 That’s it for Justice Scalia.

I am done picking on Justice Scalia.