Judge Posner's Shoddy Attack on Justice Scalia and Originalism
For a couple of weeks now, liberals have been tweeting and blogging like crazy about a book review in The New Republic in which veteran appellate judge Richard Posner attempts to trash - there's no other word for it - the new book by Justice Antonin Scalia and writing guru Bryan Garner: Reading Law: The Interpretation of Legal Texts.
Posner's critique generated exultation on the left - after all, here was Justice Scalia getting a public smack-down from a fellow conservative! Well, whether Posner can still be called a conservative - he recently refused the label in an interview with NPR's Nina Tottenberg - his criticisms consistently miss the point of Scalia's and Garner's book. But, to be fair to Posner, what he lacks in the way of analytical skill, he more than makes up for in gratuitous ad hominem attacks. It's an extraordinarily nasty article in which Posner uses a variety of euphemisms to call Scalia a liar.
Over at Point of Law, I have a longer piece dissecting the Posner/Scalia feud, but in a nutshell, the dispute centers on how judges should go about interpreting written laws. In Reading Law, Scalia and Garner offer a robust defense of "textualism," i.e., that doctrine that judges must interpret statutes (and constitutions) to give effect to the meaning that the text reasonably conveyed at the time of its adoption. In the realm of constitutional law, textualism translates as "originalism" or, more precisely, the "original public meaning" theory. The basic idea is that constitutional provisions should be applied as they were understood by the public that ratified them.
Posner doesn't go for all that fidelity-to-the-text jazz. He believes that judges should identify the overarching "purpose" of a written law, and then arrive at results that will further that purpose. Thus, although Posner has historically been regarded as a conservative, at least in the economic realm, his judicial philosophy has more in common with that of his liberal activist brethren.
Posner's review is riddled with errors, which have been exhaustively demolished by Ed Whelan of the Ethics in Public Policy Center (and NRO Bench Memos), and by Garner himself in a reply published in The New Republic. But Posner is unrepentant, refusing to engage Whelan on a single point of substance, instead smearing him as the head of "an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology." Well, there you have it. How could a social conservative possibly say anything worthy of response?
Posner's attack on Whelan may do more to reveal Posner's real motivation in denouncing Reading Law than any of his substantive arguments. Posner is angry - about something. His review is dripping with vitriol: Scalia and Garner follow a "pattern of equivocation," they "omit contrary evidence," their interpretive method is "hopeless," they are disingenuous, etc. Posner, once upon a time a darling of conservatives, has recanted his conservatism, as noted above. Perhaps his estrangement from conservatism has led him to lash out at those who still stand by their principles. Whatever the reason for his latest attack, it is, alas, a sad spectacle to see a federal judge so outraged by the modest proposition that courts ought to be faithful to statutory text.
My longer analysis of Posner's critique is here.
- Comment (17)
- · Quote
- · UnfollowFollow (6)
Comments:
Apr '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Uh-oh, it sounds like he may be evolving! Can someone come up with a vaccination for that for conservative judges?
Feb '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Scalia & Garner will be in NYC next week. Will I see you at some of those events?
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Yes! I will be at the Fed Soc lunch on the 18th - will you be there?
Feb '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
A lot of people believe Posner is a genius. He may well be one. But too me he's always seemed a wee bit cracked. Remember his law review article proposing a market in babies?
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Alas, I think Posner is beyond the power of vaccines. He told Nina Tottenberg that he doesn't really consider himself conservative anymore and that he considers the GOP "goofy." Once judges start making nice to Nina, they are lost.
Feb '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Yes, I'll be a volunteer along with other Fed-Soc officers at NY law schools.
Adam Freedman
Yes! I will be at the Fed Soc lunch on the 18th - will you be there? · 0 minutes ago
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
I did not see that one, but it doesn't surprise me. I'm sure Posner is intelligent, but he's always struck me as a Johnny-one-note: everything is analogized to "the market" so that we have the sex market, the marriage market, and now, evidently, the baby market. I agree that the idea of a market is a useful prism to look at how we allocate finite goods, but come on, that's not exactly an insight upon which to build a career.
Feb '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
There's nothing goofy about buying and selling children on the market.
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Jordan Rodriguez: Yes, I'll be a volunteer along with other Fed-Soc officers at NY law schools.
Adam Freedman
Yes! I will be at the Fed Soc lunch on the 18th - will you be there? · 0 minutes ago
2 minutes ago
Great - another Ricochet meet up!
Jun '10
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
As Scalia once said, the living constitution judge is a happy judge, because lo and behold, the constitution always agrees with him. 'Would that I were so "lucky." '
Jan '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Like most debates about originalism, the living constitution, and so on, the argument ultimately comes down to the relationship between the written law and the consent of the governed. All things being equal, the law is presumed to convey what the people consented to, and consent is what gives the law its authority.
It may be true that the original purpose could have been better served by different words. Perhaps. But the text was what they agreed to, and that's why you have to go by it.
The authority of the law doesn't rest on ...
It depends entirely on what the people consented to when they did the consenting. If you want us to consent to something else, feel free to propose a new law. And if a critic claims that times change, so the law must change with it, the answer is that that's why we have legislatures - to keep laws current. That's different from the judiciary's job.
Mar '12
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
"A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text." That is the nub of Posner's argument. The conservative answer is that the legislature is not thwarted at all: if the unforeseen situation should be included in the law's operation, the legislature is best able to amend the law to deal with it, considering by the way all the nuances of the new situation and whether in fact the law as originally written should apply exactly to it or should also be modified to deal with new realities. Judges (by the nature of the limits of case-orientation) are singularly ill equipped to explore such generalities.
I suspect this is a case of professional deformation: "to a hammer, everything looks like a nail." Over the course of a judicial career, an intellectually active judge (with lifetime tenure) is tempted to think that he is the source of all wisdom. Conservative conceptions of the limits on judicial lawmaking feel increasingly like self-imposed shackles.
Mar '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Garner's Modern American Usage is an invaluable reference and my daily emailed snippets from the book are also most enjoyable. It's great to see him partnered with Scalia.
Sep '10
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
That makes two of us. And I can't help but use this opportunity to stump for Bryan Garner's favorite book on typography: Typography for Lawyers.
Feb '11
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
You've hit on something broader here that goes way beyond legal debates. When liberals and conservatives talk past each other, I suspect this issue is frequently at the root. Just yesterday I noticed a post on Google+ where a video showed how "Romney lied" in a confrontation with a reporter.
What was the "lie"? In the video from 2008 (I think) Romney said that lobbyists weren't running his campaign. A reporter called him a liar because person X was a lobbyist. Romney claimed that person X didn't run his campaign. The reporter called him a liar again and asked if the person had been to debate prep sessions. Romney said that person X had been to sessions but was only an unpaid adviser and was not "running" the campaign. The reporter maintained that this was just "semantics".
The reporter rejected the plain meaning of the words and substituted his own meaning so as to construe Romney as deceitful.
Sep '10
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
At the core of modern liberalism is nominalism.
Dec '10
Re: Judge Posner's Shoddy Attack on Justice Scalia and Originalism
Pseudodionysius
That makes two of us. And I can't help but use this opportunity to stump for Bryan Garner's favorite book on typography: Typography for Lawyers.
Sep 13 at 8:10pm
Butterick is masterful. Have to brag that I got my Academic Legal Writing book signed by Eugene Volokh yesterday.
Edited on September 22, 2012 at 6:36am