Posner v. Scalia & Garner, Round XXV

June 23rd, 2014

Our favorite never-ending feud boils over into the July 2014 edition of the ABA Journal, with an interview with Judge Posner. As Howard Bashman notes, “Perhaps coincidentally, the July 2014 issue appears not to contain any new installment of Bryan A. Garner’s “On Words” column.”

Three questions into the interview, Posner is asked a question of how appellate judges consider district judges. So of course he opens up about Justice Scalia:

RAP: He’s entitled to that view. Justice Antonin Scalia called me a liar for a criticism I made of his book with Bryan Garner [Reading Law: The Interpretation of Legal Texts]. He’s excitable and prone to anger. We’re actually old friends, although the friendship has been frayed somewhat, at least on his side. I don’t think I’d react to the district judge in your hypothetical case.

The interviewer deftly steers Posner back on topic, but a few questions later returns to Posner’s review of Scalia and Garner’s book. Posner notes that he did not select the title, The Incoherence of Antonin Scalia.”

JC: You mentioned that Justice Scalia called you a liar. That was, as I understand it, in the context of a book review you wrote about Reading Law. The title of that review, published inThe New Republic, was “The Incoherence of Antonin Scalia.”

RAPThe New Republic insists on deciding on the title. I’m sure they do this with all their authors. They’re trying to stir up readership interest, so their titles sometimes have a harsher, more adversarial tone than my reviews.

JC: You could have pulled that review and said, “That is not what I want to say.”

RAP: No, they don’t tell me what the title will be—I first see it when the review is published.

JC: But did you write a note to Justice Scalia saying, “Nino, by the way, I wrote the article and while it may be somewhat provocative about your jurisprudence, please understand that title’s not mine”?

RAP: No, I wouldn’t do that.

JC: Wouldn’t you be concerned that he might take that title the wrong way—that it would be reasonable for him to presume that you authored or at least approved it?

RAP: Although I have reluctantly allowed The New Republic to enforce its policy of attaching the title without consulting me, I’m responsible, right? I can’t shed responsibility for the title when I’ve given the magazine the right to affix whatever title it picks.

Does Posner think his critiques of Scalia impacted the way the Justice sees him? Of course not. He still affirms him.

JC: That’s precisely what I’m driving at. When you enter into the “real world” with your writings, isn’t there a risk you are potentially going to inflame, in this instance Justice Scalia, and potentially influence his view of a decision you wrote that he is asked to review?

RAP: No, I don’t think so. He just issued an opinion a few weeks ago that affirmed a decision of our court, which I had written. He didn’t make any snide comments about my opinion.

JC: Is that proof that you’d rely on for the proposition that he hasn’t formed a negative opinion based on that title?

RAP: I imagine he has a bad opinion of me, but I wouldn’t expect that to affect his decisions. The stakes are too high. I would be very surprised if he’d allow a personal dislike for a judge to influence his views.

Posner also is not concerned about his “dust-ups” with Scalia:

JC: Do you have any concern when you engage in, for lack of a better word, a dust-up with Justice Scalia that it deflects from the respect the judiciary might have in the eyes of the public, or even the bar itself?

RAP: I don’t care about that.

JC: How can that be?

RAP: Because I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

Posner returns, and notes the Scalia/Garner book “had errors” and that the “book was written by research assistants and not adequately checked.”

JC: We talked before about whether, given the title of the New Republic review, you were attacking Justice Scalia. As you acknowledge, you’re responsible for the title even though it was not approved by you. What is that kind of thing communicating?

RAP: I don’t think attacking is the word. He writes a book about judicial interpretation. His book has errors. I connect that in part to the fact that in the front of the book there are acknowledgments of assistance from more than 90 people, including a number of law students. My guess is that much of the book was written by research assistants and was not adequately checked. I’m not saying the authors are bad people—that they’re greedy or that they’re lying. I’m saying that it’s an inaccurate book. I also happen to disagree with Justice Scalia’s philosophy of originalism. I think that’s legitimate criticism.

Update: Posner does not mention the report Garner commissioned by Steven A. Hirsch, which found that virtually all of Posner’s claims were incorrect. I previously blogged about the report here.

Yet remarkably, he would prefer the Justices to take a *lower* profile:

JC: In a “Supreme Court Year in Review” piece in Slate you raise the question of whether it is bad for a Supreme Court justice to be outspoken. You write: “Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be?” You ask the question but don’t answer it. Do you think it’s bad for a Supreme Court justice or a circuit justice to be outspoken?

RAP: I think from a public relations standpoint it would better for the Supreme Court justices to take a lower profile—talk less on the bench and participate less in mock trials and other celebrity-type activities.

And, in a subtle shot at the other Justices, he claims he writes for Slate to force himself to read opinions. Otherwise, they are “tedious”

JC: When you decide to write, for example, these “letters” to Dahlia Lithwick and [former Acting Solicitor General] Walter Dellinger published in Slate regarding the Supreme Court roundup at the end of the term, you’re not writing for a legal audience. You’re writing for a broader audience. Why do you write those? What is your goal?

RAP: The reason I agreed to write them was that it would force me to read more Supreme Court opinions carefully.

JC: You wouldn’t have read the opinions carefully if you weren’t writing a piece for Slate? I suggest, if you don’t mind, you’re not completely self-aware here.

RAP: I read the Supreme Court opinions that bear directly on cases I have. I don’t read the others. They are often tedious, and anyway I find it difficult to get much out of opinions that are not directly relevant to something I’m thinking about. So I thought it would be good for me to read opinions that weren’t germane to any case I had—that it would give me a better sense of what’s going on in the Supreme Court.

To sum it up, in response to a question about whether attorneys may not move for his recusal out of a fear of retaliation, Posner replies:

I don’t have a reputation for being vengeful, do I?

Round XXV it is.

Aside from the feud, Judge Posner comments on a phenomenon that many people may not be aware of–some courts assign opinions to judges before oral arguments.

 Some judges work very hard until they drop—others don’t. And of course judges are not uniformly able. There’s also a problem of excessive delegation to staff, mainly law clerks. And at least three circuits, the 5th, 6th and 9th, now have pre-assignment of judges. A case is assigned to a judge before argument, and he is expected to circulate a memo about the case in advance of argument to the other judges on the (normally three-judge) panel. The danger is that the other judges won’t prepare adequately, feeling it’s the assigned judge’s case. I consider that a questionable practice, deserving full examination. And there are other problems as well, including problems with the overall management of the federal judiciary.

I can attest to this practice.