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Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 5



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See Parts 1, 2, 3, and 4 (entire series collected on one page here)

Perhaps Richard Posner’s most baffling failing in his wildly incompetent review of Justice Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts is that he doesn’t understand—or he chooses to misrepresent—what they set out to accomplish.

Scalia and Garner don’t hide the ball. In the first paragraph of their preface, they state that they seek to show that the “established methods of judicial interpretation … are widely neglected,” that this neglect has had lots of bad consequences, and that it is “not too late to restore a strong sense of judicial fidelity to texts” (p. xxvii). In their third paragraph, they state that just as meaning generally is determined by convention, so in legal systems “there are linguistic usages and conventions” as well as “jurisprudential conventions” (p. xxvii). To that end, they set forth and explain 57 interpretive principles or canons and they expose thirteen widespread falsities.

Posner seems badly confused about the basics of their project:

1. At one point, Posner states that Reading Law “is Scalia’s response to the criticism” of his Second Amendment ruling in Heller v. District of Columbia. Anyone who has even skimmed Reading Law would recognize that assertion to be preposterous. As Garner states in his response to Posner:

What? I spent three€‘and‑a‑half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand‑plus articles to write a full‑length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self‑evidently farcical statement. Why write such a tome if its “real” purpose covers less than three pages? (There are two citations to Heller in the introduction and two pages totaling two paragraphs of discussion about Heller in the context of examining legal history.) No, that wasn’t the book’s purpose.

2. As I have already explained, whereas Scalia and Garner cite some 600 cases to illustrate particular points about their interpretive propositions, Posner instead leads the reader to think that they discuss a small number of cases as general “exemplars either of textual originalism or of a disreputable rejection of it.” That misunderstanding, together with other sloppiness, fuels his baseless smear that Scalia and Garner misrepresent the cases they cite. (See my Part 2 and Part 3 posts.)

3. Among the strangest of Posner’s sentences is this rhetorical question: “How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?” (Emphasis added.)

It’s bad enough that the far more appropriate question is mine: “How many readers of Posner’s essay will do what I have done—read the opinions that he claims Scalia and Garner distort and discover that Posner is the one doing the distorting?” But the last clause of Posner’s question indicates that he somehow thinks that Scalia and Garner are trying to describe “how judges actually interpret legal texts.” In fact, their “approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language” (p. 9 (emphasis added). They are reacting against, and trying to remedy, the widespread judicial “neglect” of “established methods of judicial interpretation.”

4. Posner vacillates between falsely attributing to Scalia and Garner a wooden reliance on dictionary meaning (see point 3 of my Part 1 post) and faulting the “remarkable elasticity” of their methodology. As to the latter charge, a sufficient response is: Elastic compared to what? Posner’s methodology?!? Interpretation of legal texts is a craft, and, like other crafts, can be performed well or poorly. One purpose of their book is to enable well-intentioned judges to become better and more constrained judges by using the interpretive principles and canons properly.

Posner charges that Scalia and Garner’s canons “provide them with the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.” That charge has things backwards: Judges who recognize the proper constraints on when canons come into play will have less flexibility to pursue their own policy preferences than those who don’t. (Posner’s insinuation that Scalia has generated outcomes that match his putative views is also demonstrably false: Someone who strongly opposes abortion or homosexuality and who indulges his policy preferences would favor a reading of the Constitution that entrenches his position on those issues, not a reading, like Scalia’s, that leaves the matter to the democratic processes to be decided either way (and to be revisited).)

One must wonder if Posner’s real lament is that Scalia and Garner’s sophisticated textualism doesn’t correspond to the straw-man caricature that he and other non-textualists find convenient to dismember.

5. In the last part of his essay, Posner seems to imagine that Scalia and Garner’s canons can’t genuinely be textualist unless they derive directly from more fundamental textualist principles. But as Scalia and Garner explain, textualism operates within a system of already-existing (if sometimes badly neglected by judges) linguistic and jurisprudential conventions. Some of those conventions may well be arbitrary, and none need necessarily to have taken the form they have (which is why we call them conventions). But textualism, like language generally, operates against the backdrop of these conventions.

* * *

I have not attempted in these posts to provide an exhaustive account of Posner’s errors. I have instead focused on those errors that show that his most incendiary charge—that Scalia and Garner have misrepresented the cases they cite—is false and that his review is untrustworthy and, indeed, incompetent.

Within the broad bounds of fair commentary, there is surely plenty of room for a responsible critique of Scalia and Garner’s book. But Posner hasn’t provided one. (In addition to Garner’s own response to Posner, I’ll note that law professor Mike Rappaport, who praises Posner as a “genius,” calls Posner’s review “a hatchet job – an attempt to attack the book, without balance, from every possible direction.”)

As usual, I will be happy to respond to any substantive critique of my own posts and, if I determine that I have made any errors, to acknowledge them openly and correct them. I’ll note that Posner has his own blog available to defend himself (and to make appropriate corrections and apologies). Further, if he asks, I will post verbatim on Bench Memos any response he has to my posts.



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