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Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 1



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In the New Republic, Seventh Circuit judge Richard A. Posner has a very long essay (more than 5000 words) attacking Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner (and the subject of various posts of mine, beginning here, over the past month). As I hope to elaborate in additional posts over the next week or so, Posner’s attack is remarkably slipshod and untrustworthy. Here are some opening observations:

1. Posner somehow misunderstands the relationship between Scalia and Garner’s defense of original-meaning textualism, on the one hand, and their elaboration of interpretive canons, and of selected cases applying particular canons, on the other.

As Scalia and Garner explain, their canons “are not ‘rules’ of interpretation in any strict sense but presumptions”—rebuttable presumptions—“about what an intelligently produced text conveys” (p. 51). As I’ve explained, Scalia and Garner acknowledge that the canons “can be abused, as every useful tool can be abused,” and that, like clues in a good mystery, they “often point in different directions” (pp. 59-61). Their treatise aims to enable a good judge to better understand the canons in order to sort through how they interrelate on a particular question.

Whereas Scalia and Garner cite cases as illustrations of specific canons, Posner instead claims that they cite cases “as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism.” Posner’s vigorous eleven-paragraph critique of their case illustrations turns largely on his misunderstanding (and is abetted by his distorted account of their points).

2. Posner’s broader attack on textual originalism (in the first third or so of his essay) is replete with errors and distortions. For example, Posner contends that when Scalia “looks for the original meaning of eighteenth-century constitutional provisions,” he “is doing legislative history.” But Scalia and Garner spell out quite clearly how the use of legislative history “to establish what the legislature ‘intended’”—the use they object to—“is quite different from using it for other purposes,” including “for the purpose of establishing linguistic usage” (p. 388).

The reader who trusts Posner will also be misled into thinking that William Blackstone and Chief Justice Marshall were (in Posner’s phrase) “loose constructionists” (see the next-to-last paragraph of this post by Matt Franck four years ago on Posner’s similar assertion)—and, by implication, might also be misled into thinking that Scalia and Garner support “strict construction” (when in fact they repudiate it (pp. 39-40)).

Even more remarkably, Posner doesn’t confront Scalia and Garner’s critique of the purposivism that he embraces, a critique that maintains that the purposivist can define the purpose of a law at whatever level of abstraction he needs to generate the result he desires. Instead, Posner facilely assumes that a statute has a single discernible purpose, as he defends a judge’s applying a statute “to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text.” (Emphasis added.) (Oddly, Posner doesn’t see fit to disclose that Scalia and Garner target him for criticism, including as one of the “modern critics … glibly disparaging the canons” (p. 60 & n. 6).)

3. Posner’s prominent contention that Scalia and Garner place “a heavy emphasis on dictionary meanings” and have a “dictionary-centered textualism”—indeed, that their interpretive method can be reduced to “new dictionaries for new texts, old dictionaries for old ones”—provides a useful case study of Posner’s distortions.

Scalia and Garner in fact advocate a much more modest and nuanced use of dictionaries. A judicial interpreter, they advise, should resist the temptation “simply to rely on his or her own sense of the language,” as “it would be a mistake not to consult” the work of “lexicographers and usage commentators [who] have explicitly dealt with” semantic questions (pp. 71-72). But, as they spell out in a separate appendix titled “A Note on the Use of Dictionaries,” “an uncritical approach to dictionaries can mislead judges” (p. 415), so, when dictionaries are consulted, “a comparative weighing of dictionaries is often necessary (p. 417). Even then, “courts must take care in such analyses,” as “[o]ccasionally most dictionaries will define a word inadequately—without accounting for its semantic nuances as they may shift from context to context” (p. 418). They therefore set forth a set of “primary principles to remember in using dictionaries” (pp. 418-419).

In his leading item in support of his contention that “omitting contrary evidence” is “Scalia and Garner’s favorite rhetorical device”—the “is a taco a sandwich?” case that I’ve discussed—Posner falsely contends that Scalia and Garner present a court’s “dictionary reference” as though it “were the court’s entire decision.” But Scalia and Garner use the case only to illustrate their “Interpretation Principle”—namely, that “Every application of a text to particular circumstances entails interpretation.” They say only that the court “sensibly relied on a reputable dictionary,” not that it exclusively did so. Indeed, they specifically note that the term “sandwiches” was not “a defined term in the lease”—a point that Posner repeats while giving the impression that Scalia and Garner hid it.

As my own post on the case shows, I agree with Posner that the dictionary definition of “sandwich” that the court cited was in some respects a poor one. But that flaw has zilch to do with the very limited use that Scalia and Garner were making of the case.

Disclosure: As I’ve previously noted, Scalia and Garner generously include me in a long list of folks whom they thank in their Acknowledgments. I reviewed what I think was a fairly early draft of their manuscript and provided various comments. As my NRO bio notes, and as I assume regular readers are aware, I also was a law clerk to Justice Scalia (two decades ago).



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