Posner v. Scalia, Rounds XVII and XVIII

October 16th, 2013

With Judge Posner writing a new book, we have a new round of volleys in this long-standing feud between Posner and Scalia.

Last week in Mike Sacks’s amazing interview with Judge Posner, Posner unleashed his usual attack on originalism and indeterminancy. Round XVII. Also, Mike’s interview became famous for Posner’s concession that the Crawford voter-ID case was wrongly decided. Even the Times picked it up (no name drop alas)!

And for Round XVIII, in Coverage Opinions, Posner says he is willing to publicly debate Scalia, but Nino would never demean himself to go against an inferior court judge.

Q: Your disagreements with Justice Scalia on realism versus formalism are widely known. This is addressed in the book. In addition, the debate has played out in the media and on law blogs. Would you consider a live debate, on a stage, with Justice Scalia over your disagreements? While neither would change the other’s mind, it would be very enlightening for the legal field and have the excitement of a Super Bowl atmosphere.

A: I’d be happy to debate Justice Scalia, but he would never agree, because he would regard it as lowering himself (a supreme court justice) to the level of a mere court of appeals judge (me).

Scalia said as much in Round V, where he pulled rank on Posner during an interview with Chris Wallace.

SCALIA: He is a court of the appeals judge, isn’t he?


SCALIA: He doesn’t sit in judgment of my opinions as far as I’m concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That’s what happens.

Recall that during the 2008 Federalist Society Lawyers Convention, Scalia was supposed to debate Posner, but Scalia withdrew–for reasons we can imagine (that was the year after Heller). I don’t see this debate happening anytime soon.

H/T Ted Frank