Bench Memos

Posner Self-Immolation Watch

Richard Posner’s feeble defense of his incompetent and smearing review of Justice Scalia and Bryan Garner’s new book on legal interpretation is, fittingly, further discrediting him.

Law professors Kevin Walsh and Orin Kerr separately take on Posner’s newest example of a case that Scalia and Garner purportedly misrepresent. Walsh concludes that Posner is “wrong,” and Kerr, who calls the case “a favorite of [his],” likewise labels Posner’s critique “not fair” and “pretty weak.” In an observation that, as my Part 2 and Part 3 posts show, applies to the other case citations that Posner wrongly attacks, Kerr adds:

It’s also true [as Posner states] that Holmes does mention the legislative history, even if only in part of one sentence. But as far as I can tell, Scalia & Garner don’t suggest that McBoyle is an example of the canon providing the exclusive reasoning used to construe a statute. As best I can tell from the context, they are just using McBoyle as an example of the canon being used. Which seems accurate to me. Finally, Posner’s accusation that Scalia & Garner “ignore” all this seems a bit odd given that the mention of McBoyle amounts to a single short sentence. If you’re summarizing a Supreme Court decision in one short decision as an example in a list, not mentioning these other points seems pretty understandable.

Meanwhile, law professor Akhil Amar observes that Posner’s claim that Scalia violates originalist tenets in extending the “freedom of speech” guarantee of the First Amendment to “non-verbal forms of political protest” rests on a conflation of freedom of speech and freedom of the press that Posner himself had previously refuted on originalist grounds. (Amar does briefly assert that “Posner scores many points against Scalia,” but Amar doesn’t identify what, if any, points he has in mind, and the context suggests that the line is designed to lessen the sting of Amar’s charge, in the next clause, that Posner’s First Amendment claim “is not his finest hour.”)

I’ll further note that neither Posner nor, so far as I’m aware, anyone else has disputed any part of my extensive five-post dissection of Posner’s scandalously incompetent review. It’s quite telling, I would submit, that Posner has instead resorted to his inane ad hominem attack: I am confident that he is incapable of refuting my case against him. (That said, consistent with my usual practice, if it turns out that I have made any errors, I will openly acknowledge them and correct them.)


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