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.