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Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 3


In my first two posts, I’ve demonstrated that Richard Posner’s attack on Justice Scalia and Bryan Garner’s use of cases is wildly irresponsible. I would hope that the attentive reader should find further evidence unnecessary. But in the interest of comprehensiveness, even at the risk of overkill, I address below the three remaining cases (of a total of six) in Posner’s indictment. (I number the cases serially from my Part 2 post; I addressed one case in my initial post (in point 3), so the cases in Part 2 and this Part 3 total five.)

I especially encourage you to read the final two paragraphs of this post.

3. Posner complains that Scalia and Garner “denounce” a court ruling (in Braschi v. Stahl Associates) that held that the term family in a rent-control statute that barred a landlord from dispossessing a “member of the deceased tenant’s family who has been living with the tenant” includes, in Scalia and Garner’s summary, “a cohabitating nonrelative who had had an emotional commitment to the deceased tenant.” Posner doesn’t actually defend the ruling (he says that the “case may be right or wrong”), but he declares “disturbing” Scalia and Garner’s “failure to mention that it was a homosexual couple at a time when homosexual marriage was not recognized in New York, and that the opinion states that the two men had been living together just like spouses and had been accepted as such by their families.”

Scalia and Garner’s “failure to mention” is entirely justified. The opinion that Scalia and Garner disagree with adopts a test for family (for purposes of the statutory provision) that is not limited to homosexual couples but, rather, extends to unmarried heterosexual couples. Far from giving any weight to (or even mentioning) the inability of same-sex couples to marry, the court explicitly repudiates “rest[ing] on “fictitious legal distinctions” arising from “a marriage certificate or an adoption order.”

Further, Scalia and Garner use the case, as part of their discussion of the fixed-meaning canon, to illustrate the proposition that “It is not for the courts to change [statutory] definitions from time to time” (p. 90). For this purpose, what is relevant about the court’s ruling, as the dissent points out in the passage that Scalia and Garner quote, is that it departs from “using objectively verifiable relationships based on blood, marriage and adoption, as the State has historically done in the estate succession laws, family court acts, and similar legislation.”

I’ll also note that Scalia and Garner’s tepid prose (which gets no stronger than “The dissent correctly criticized this expansive interpretation”) hardly justifies Posner’s claim that they “denounce” the ruling. And insofar as Posner is trying to insinuate that Scalia and Garner are, by his lights, insufficiently sensitive to the interests of homosexual couples, his failure to mention that their book discloses that Garner “supports same-sex marriage” (p. 18) is, one might say, disturbing.

4. Some 160 pages later in Scalia and Garner’s book (pp. 253-254), Posner finds another case discussion to take issue with. Here again, Posner messes things up.

At issue in the case (State v. French) was whether a landlord who refused to rent his house to a single woman because she planned to live in the house with her fiancé violated a statute barring discrimination on the basis of “marital status.” As Posner correctly notes, the court, in answering this question in the negative, relied in part on a separate statute prohibiting fornication. The case thus aptly illustrates the very proposition for which Scalia and Garner invoke it—namely, that courts should have “a good deal of leeway” in reading separate statutes harmoniously. But Posner hides from the reader that this is the use to which Scalia and Garner put the case.

Posner instead faults Scalia and Garner for not trotting down the irrelevant and confused pathways that Posner pursues. Posner blames them for not quoting a statement that Posner speculates may offer insight into a supposed motivation behind the decision. He also thinks it noteworthy that the opinion “referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.” (This is yet another example of Posner’s confusing the reader into thinking that Scalia and Garner offer the cases as “exemplars … of textual originalism” generally, rather than as illustrations of specific canons.)

Posner also wrongly claims that an amendment to the anti-discrimination law, made after the refusal to rent but before the court’s decision, “broadened statutory protection to unmarried persons” and thus “provided some basis (though far from conclusive) … for the court’s decision that they denounce [sic—he means against the decision they applaud].” He faults Scalia and Garner for “not mention[ing] this possibility.” But there was no dispute that the anti-discrimination law, before the amendment, protected unmarried persons. The question was whether a landlord who will rent to unmarried persons generally but who won’t rent to an unmarried person who intends to cohabit with a sexual partner is discriminating on the basis of marital status. The text of the amendment did not speak to that question. (The dissent contended only that its legislative history did.)

5. Posner contends that Scalia and Garner “revel[] in absurdity” when they defend the Supreme Court’s refusal, in the 1924 decision in Chung Fook v. White, to apply the doctrine of absurdity to rewrite an immigration provision. What Scalia and Garner are in fact doing (pp. 237-239) is avoiding what they call the “slippery slope” of judicial “error-correction for absurdity” by setting forth “two limiting conditions” on the doctrine of absurdity. They use the Chung Fook case to illustrate the second of their conditions (the absurdity must be the result of a “technical or ministerial error”).

Posner faults Scalia and Garner for “fail[ing] to mention that the Supreme Court appears to have agreed with the sensible alternative interpretation of the statute that the court of appeals had adopted,” an interpretation that would not have yielded an absurd result. But the Court, as Posner acknowledges, did not in fact adopt that interpretation. Why Posner imagines that Scalia and Garner should have diverted the reader on an irrelevant observation (one that Posner himself wastes some 290 words on) is a mystery.

* * *

Over the years, a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge. I had a similar reaction to his badly flawed book about judging. Nonetheless, Posner clearly has somehow acquired a reputation that inclines folks to credit his judgments.

It is no small matter that Posner has abused his reputation to smear Scalia and Garner with his incendiary and ill-founded charge that they have broadly misrepresented the cases that they discuss. (It would, of course, not be a surprise if Scalia and Garner turn out to have made a small number of errors among the more than 600 cases they cite, but Posner has uncovered none.) Posner owes Scalia and Garner a prominent retraction and apology.


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