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Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 2


In what is perhaps his most attention-grabbing claim, Richard Posner purports to show that Justice Scalia and Bryan Garner have badly misrepresented the cases they cite. Various folks who ought to know better have gullibly embraced Posner’s critique. For example, law professor Brian Leiter quotes in full nine of the eleven paragraphs of Posner’s indictment and asserts that a review like Posner’s “would finish the career of the academic who authored the book in question, and might even raise questions about scholarly fraud.”

Given the extraordinary nature of Posner’s claim, I will address each of his claims in detail in this post and the next one. As the reader will discover, the “questions about scholarly fraud” ought to be directed against Posner.

Two preliminary notes: First, as I explained in my opening post, Posner is wrong to contend that Scalia and Garner offer the cases they favorably cite as “exemplars … of textual originalism” in general. Instead, they use them only to illustrate particular canons. Second, and relatedly, when Posner states that his disbelief about one holding led him to “start[] reading the other cases cited by Scalia and Garner,” the trusting reader might imagine that the handful of cases that Posner (wrongly) takes issue with comprise some significant portion of the overall corpus of cases that Scalia and Garner cite. But, as a review of their 22-page Table of Cases will show, Scalia and Garner cite some 600 cases.

In my initial post (in point 3), I disposed of Posner’s claim that Scalia and Garner misrepresented the first case that Posner addresses, the “is a taco a sandwich?” case. Let’s now run through the other five cases that Posner discusses:

1. Posner says that when he read Scalia and Garner’s statement that the Kansas supreme court “perversely held that roosters are not ‘animals’” (and that cockfighting therefore did not violate a law against cruelty to animals), he “found it hard to believe,” so he “looked up the case” and “discovered that the court had not held that roosters are not animals.” “In fact,” he writes, “the court said that ‘biologically speaking a fowl is an animal,’ but that it was not in the class of animals protected by the statute.”

Posner’s quarrel is baffling. When Scalia and Garner state that the court held that roosters are not “animals” (“so that,” as they immediately continue, “cockfighting was not outlawed by a statute making it illegal to ‘subject[] any animal to cruel mistreatment’” (p. 72)), the intelligent legal reader would understand that, by putting the word animals in quotes, they are referring to the statutory term. No intelligent legal reader would understand them to have alleged that the court was asserting that roosters are not, as a biological matter, animals. Their statement of the court’s holding is sound, as the reader will discover for himself by reading the ruling.

Further, it is Posner’s account of the court’s reasoning that is distorted. The court’s own recognition of the biological reality is grudging (“even though we must recognize that biologically speaking a fowl is an animal”), and the point that it makes “First of all” is that “we harbor the opinion that in the common everyday experience of mankind chickens are seldom thought of as animals; rather, they are birds, with avian characteristics, in contrast to beasts of the field.”

Posner also asserts that Scalia and Garner ignore “all” the reasons the court gave for its conclusion. That is neither true nor significant. Although the trusting reader of Posner would have no way of knowing it, Scalia and Garner’s discussion of this supposed “exemplar[] … of textual originalism” consists of a single sentence, supported by a case citation in a footnote. They use the case for the limited purpose of supporting their proposition that “Courts have sometimes ignored plain meaning in astonishing ways,” so there would be no reason for them to summarize the court’s reasoning in detail. Even then, the parenthetical to their case citation states that the court noted that the “cruelty-to-animals-statute had traditionally applied only to four-legged animals.”

Continuing his hyperbolic account of the role that Scalia and Garner accord dictionary definitions (see point 3 of my original post), Posner also falsely contends that Scalia and Garner complain that the court’s holding was “in defiance of the dictionary.” They refer broadly to “plain meaning,” not narrowly to dictionary definitions.

2. Posner contends that Scalia and Garner say that a court “correctly decided [a] case … on the basis of the dictionary definition of ‘into’” but that they “misread the court’s opinion.” According to Posner, the opinion “calls the entire expression ‘from any location into any occupied structure’ ambiguous” and “went on to decide the case on other grounds.”

Scalia and Garner use the case to illustrate the proposition that the ordinary-meaning canon “[s]ometimes … governs the interpretation of so simple a word as a preposition” (p. 71). Their one-paragraph discussion therefore focuses on the aspects of the opinion that bear on that point, but they don’t claim that the court decided the case solely on the basis of “into” (much less solely on the basis of the dictionary definition of the word).

Further, Posner’s account of the opinion itself is incompetent. He is correct that the court found the phrase “from any location into an occupied structure” to be ambiguous, but, far from deciding the case “on other grounds,” the court determined that “the plain meaning of the word ‘into’ suggests that the shooter must be located outside the structure” and that this was the “best and logical reading of the statute” (slip op. at 14). (The court went on to add that the rule of lenity “further supported” its interpretation.)   

More in my next post.


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