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Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 4



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Beyond his contemptible smearing of Justice Scalia and Bryan Garner (see my Part 2 and Part 3 posts), Richard Posner’s New Republic review of their book Reading Law: The Interpretation of Legal Texts is rife with other errors, on matters both large and small. His review is, in short, laughably incompetent.

I will show in my next post (which I expect to be my last post of this series, or at least of this opening round) that Posner either grossly misunderstands what Scalia and Garner are setting out to do in their book or is willfully misrepresenting their project. I will provide in this post some additional examples of Posner’s remarkable sloppiness on subsidiary matters.

Before I turn to these examples, let me highlight that Bryan Garner yesterday posted online his own response to Posner, a response that soundly complains that Posner displays a “tendentious hostility,” that his review goes “seriously off the rails,” and that he commits multiple “blunders” that a “little fact-checking would have prevented.” (H/t How Appealing.) Garner’s critique is, I’m pleased to note, similar to mine (and Garner specifically praises my Part 2 and Part 3 posts for doing a “masterly job of demonstrating why the six [case] examples that Judge Posner assails … are entirely correct.”) There are some matters that Garner addresses that I had already been planning to get to, so I won’t let the unsurprising fact that we independently arrived at the same correct observations deter me from covering some of the same ground.

1. Scalia and Garner spend a few pages (pp. 36-39) discussing a hypothetical ordinance that states, “No person may bring a vehicle into the park.” Early in his review, Posner writes:

Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

Then, near the end of his essay, Posner takes up the hypothetical again:

And remember the ambulance case? Having said that the conclusion that an ambulance was forbidden to enter the park even to save a person’s life was entailed by textual originalism and therefore correct, Scalia and Garner remark several hundred pages later that the entry of the ambulance is not prohibited after all, owing to the “common-law defense of necessity,” which they allow to override statutory text. Yet just four pages later they say that except in “select fields such as admiralty law, [federal courts] have no significant common-law powers.”

Let’s count Posner’s errors and omissions on this single matter:

First, as Garner spells out in his response, Posner’s claim that Scalia and Garner rely simply on dictionary definitions is a “gross distortion” of their analysis. (This distortion pervades Posner’s review—see point 3 of my Part 1 post).

Second, under Posner’s approach, an ambulance is a vehicle within the meaning of the ordinance when it “enters the park to save a person’s life” but the same ambulance is somehow not a vehicle when it enters the park for less pressing purposes. In their discussion, Scalia and Garner point out the textual absurdity of the purposivist position. Posner, having falsely contended that “omitting contrary evidence turns out to be Scalia and Garner’s favorite rhetorical device,” fails to inform his reader of their critique, much less attempt to offer a response to it.

Third (and particularly amusing) is Posner’s claim that Scalia and Garner “retreat” “several hundred pages later.” Gee, what a meticulous reader that Posner must be! Just kidding. Alas, it turns out that Posner somehow missed that Scalia and Garner state, as part of their very discussion of the hypothetical ordinance, that “it may well be that the undeniable exclusion of ambulances by the text of the ordinance is countermanded by an ordinance or court-made rule exempting emergency vehicles from traffic rules” (p. 39). (If necessary, of course, the city could also simply amend the ordinance.) Far from retreating, Scalia and Garner are merely applying the elementary canon they later spell out—that statutes are to be interpreted together. 

(Indeed, contrary to what Posner states, Scalia and Garner do not “remark several hundred pages later that the entry of the ambulance is not prohibited after all.” In the passage that Posner is referring to (p. 309), they observe that a “driver who violates a criminal law against high-speed driving while taking a seriously injured person to the emergency room could be excused by the common-law defense of necessity.” They don’t revisit the vehicle ordinance. It’s of course entirely reasonable for Posner to infer that the same defense of necessity would extend to an ambulance driver who enters the park to save a person’s life. But it’s sloppy for him to ignore their actual discussion of how ambulances might be exempt from the vehicle ordinance and then to mistakenly attribute to them a furtive retreat.)

Fourth, Posner thinks it inconsistent of Scalia and Garner to cite the common-law defense of necessity and then “just four pages later” (p. 313) to observe that “[federal courts] have no significant common-law powers.”  Somehow Posner, despite having properly included “federal courts” in brackets in the passage he quotes, doesn’t recognize that Scalia and Garner discuss the common-law defense of necessity in a paragraph that addresses “exceptions to criminal liability regularly applied by common-law courts” (p. 308 (emphasis added)). So one passage is dealing with federal courts and the other isn’t. There is no inconsistency at all.

2. In a short paragraph, Posner contends that the “decisive objection to the quest for original meaning … is that judicial historiography rarely dispels ambiguity” and that judges “are not competent historians.” Practicing again the “rhetorical device” of “omitting contrary evidence,” Posner doesn’t inform the reader that Scalia and Garner address this common contention (pp. 399-402), nor does he respond to any of the points they make. (Among their points: we benefit from a “continuous linguistic tradition”; in some cases, the historical inquiry is difficult, but in “most cases—and especially the most controversial ones [e.g., abortion]—the originalist answer is entirely clear”; judges have more tools than ever before; and history “is a rock-hard science compared to [the] moral philosophy” that so many non-originalists instead invoke.)

3. Posner says that Scalia and Garner are “certainly right” that a sign in front of a butcher shop that reads “No dogs or other animals” does not mean that other animals aren’t excluded (see p. 206), but he maintains that they are “not right by virtue of anything textual.” Rather, it “is the purpose of the sign, not anything in the sign, that tells you what meaning to attach to the word ‘animals.’”

Posner’s position is self-contradictory, as the word animals is something “in the sign.” Worse, he seems unable to hold a thought from one sentence to the next. In the first sentence of the paragraph, he acknowledges that Scalia and Garner allow consideration of purpose “to be gathered only from the text itself, consistently with the other aspects of its context” (emphasis added). But for the remainder of the paragraph he treats their textualist approach as though it excluded consideration of context.

4. Posner’s own neglect of text also leads to bizarre non sequiturs like this one:

They [Scalia and Garner] say that “textualism, in its purest form, begins and ends with what the text says and fairly implies” (emphasis added), but evidently Scalia and Garner are not committed to its “purest form,” for they say that “determining what is reasonably implied [by the words of a statute] takes some judgment” (emphasis in original). [The emphasis notes are Posner’s.]

Posner seems simply to have overlooked the phrase “and fairly implies” in the first excerpt. How else could he think that there is any difference between the two passages?



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