Yet Another Round of the Scalia-Posner Fight

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Last month Richard A. Posner, a Chicago judge on the U.S. Court of Appeals, reviewed Antonin Scalia’s new book, Reading Law: The Interpretation of Legal Texts. Our review has apparently hit a nerve. To recap: 

Posner accused the staunchly conservative justice of taking a hypocritical and “disingenuous” stance on his passive interpretation of law. Though Scalia claims to base his judgments purely based on the text, Posner argues, he has cherry-picked from different interpretative theories to conform his decisions to his conservative values:

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all 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.

In a Sept. 5th post on his blog, Scalia’s co-author, Bryan A. Garner, responded by calling Posner’s criticism “tendentious hostility” containing “allegations of pervasive misrepresentations.” According to him, Posner missed the point of the book, which was not to use the presented cases as examples of textual originalism, but to show how the theory can be applied to those cases. Posner in turn hit back in a TNR post, pointing out even more “examples of cases that the book misrepresents.”

It was only a matter of days before Scalia himself got into the ring. First, at a book tour event in California earlier this month, Scalia called the piece a “hatchet job” before a crowd of 500 legal practitioners. And yesterday, in an interview with Reuters, Scalia transformed his response from a defensive to an offensive one, calling Posner’s accusation of an inconsistent judicial record, “to put it bluntly, a lie.” Scalia denied that he uses legislative history in his decisions: “We are textualists. We are originalists. We are not nuts.”

Lucky for us, Scalia didn’t pass up the chance to give TNR and its readers a shout out: “You can get away with it in The New Republic, I suppose, but not to a legal audience.” I guess we’ll take it as a compliment.

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