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

National Review Online | Published on September 7, 2012

By Edward Whelan

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The following items originally appeared on National Review Online’s Bench Memos blog:

Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 1

 

In the New Republic, Seventh Circuit judge Richard A. Posner has a very long essay (more than 5000 words) attacking Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner (and the subject of various posts of mine, beginning here, over the past month). As I hope to elaborate in additional posts over the next week or so, Posner’s attack is remarkably slipshod and untrustworthy. Here are some opening observations:

1. Posner somehow misunderstands the relationship between Scalia and Garner’s defense of original-meaning textualism, on the one hand, and their elaboration of interpretive canons, and of selected cases applying particular canons, on the other.

As Scalia and Garner explain, their canons “are not ‘rules’ of interpretation in any strict sense but presumptions”—rebuttable presumptions—”about what an intelligently produced text conveys” (p. 51). As I’ve explained, Scalia and Garner acknowledge that the canons “can be abused, as every useful tool can be abused,” and that, like clues in a good mystery, they “often point in different directions” (pp. 59-61). Their treatise aims to enable a good judge to better understand the canons in order to sort through how they interrelate on a particular question.

Whereas Scalia and Garner cite cases as illustrations of specific canons, Posner instead claims that they cite cases “as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism.” Posner’s vigorous eleven-paragraph critique of their case illustrations turns largely on his misunderstanding (and is abetted by his distorted account of their points).

2. Posner’s broader attack on textual originalism (in the first third or so of his essay) is replete with errors and distortions. For example, Posner contends that when Scalia “looks for the original meaning of eighteenth-century constitutional provisions,” he “is doing legislative history.” But Scalia and Garner spell out quite clearly how the use of legislative history “to establish what the legislature ‘intended’”—the use they object to—”is quite different from using it for other purposes,” including “for the purpose of establishing linguistic usage” (p. 388).

The reader who trusts Posner will also be misled into thinking that William Blackstone and Chief Justice Marshall were (in Posner’s phrase) “loose constructionists” (see the next-to-last paragraph of this post by Matt Franck four years ago on Posner’s similar assertion)—and, by implication, might also be misled into thinking that Scalia and Garner support “strict construction” (when in fact they repudiate it (pp. 39-40)).

Even more remarkably, Posner doesn’t confront Scalia and Garner’s critique of the purposivism that he embraces, a critique that maintains that the purposivist can define the purpose of a law at whatever level of abstraction he needs to generate the result he desires. Instead, Posner facilely assumes that a statute has a single discernible purpose, as he defends a judge’s applying a statute “to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text.” (Emphasis added.) (Oddly, Posner doesn’t see fit to disclose that Scalia and Garner target him for criticism, including as one of the “modern critics … glibly disparaging the canons” (p. 60 & n. 6).)

3. Posner’s prominent contention that Scalia and Garner place “a heavy emphasis on dictionary meanings” and have a “dictionary-centered textualism”—indeed, that their interpretive method can be reduced to “new dictionaries for new texts, old dictionaries for old ones”—provides a useful case study of Posner’s distortions.

Scalia and Garner in fact advocate a much more modest and nuanced use of dictionaries. A judicial interpreter, they advise, should resist the temptation “simply to rely on his or her own sense of the language,” as “it would be a mistake not to consult” the work of “lexicographers and usage commentators [who] have explicitly dealt with” semantic questions (pp. 71-72). But, as they spell out in a separate appendix titled “A Note on the Use of Dictionaries,” “an uncritical approach to dictionaries can mislead judges” (p. 415), so, when dictionaries are consulted, “a comparative weighing of dictionaries is often necessary (p. 417). Even then, “courts must take care in such analyses,” as “[o]ccasionally most dictionaries will define a word inadequately—without accounting for its semantic nuances as they may shift from context to context” (p. 418). They therefore set forth a set of “primary principles to remember in using dictionaries” (pp. 418-419).

In his leading item in support of his contention that “omitting contrary evidence” is “Scalia and Garner’s favorite rhetorical device”—the “is a taco a sandwich?” case that I’ve discussed—Posner falsely contends that Scalia and Garner present a court’s “dictionary reference” as though it “were the court’s entire decision.” But Scalia and Garner use the case only to illustrate their “Interpretation Principle”—namely, that “Every application of a text to particular circumstances entails interpretation.” They say only that the court “sensibly relied on a reputable dictionary,” not that it exclusively did so. Indeed, they specifically note that the term “sandwiches” was not “a defined term in the lease”—a point that Posner repeats while giving the impression that Scalia and Garner hid it.

As my own post on the case shows, I agree with Posner that the dictionary definition of “sandwich” that the court cited was in some respects a poor one. But that flaw has zilch to do with the very limited use that Scalia and Garner were making of the case.

Disclosure: As I’ve previously noted, Scalia and Garner generously include me in a long list of folks whom they thank in their Acknowledgments. I reviewed what I think was a fairly early draft of their manuscript and provided various comments. As my NRO bio notes, and as I assume regular readers are aware, I also was a law clerk to Justice Scalia (two decades ago).

Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 2

In what is perhaps his most attention-grabbing claim, Richard Posner purports to show that Justice Scalia and Bryan Garner have badly misrepresented the cases they cite. Various folks who ought to know better have gullibly embraced Posner’s critique. For example, law professor Brian Leiter quotes in full nine of the eleven paragraphs of Posner’s indictment and asserts that a review like Posner’s “would finish the career of the academic who authored the book in question, and might even raise questions about scholarly fraud.”

Given the extraordinary nature of Posner’s claim, I will address each of his claims in detail in this post and the next one. As the reader will discover, the “questions about scholarly fraud” ought to be directed against Posner.

Two preliminary notes: First, as I explained in my opening post, Posner is wrong to contend that Scalia and Garner offer the cases they favorably cite as “exemplars … of textual originalism” in general. Instead, they use them only to illustrate particular canons. Second, and relatedly, when Posner states that his disbelief about one holding led him to “start[] reading the other cases cited by Scalia and Garner,” the trusting reader might imagine that the handful of cases that Posner (wrongly) takes issue with comprise some significant portion of the overall corpus of cases that Scalia and Garner cite. But, as a review of their 22-page Table of Cases will show, Scalia and Garner cite some 600 cases.

In my initial post (in point 3), I disposed of Posner’s claim that Scalia and Garner misrepresented the first case that Posner addresses, the “is a taco a sandwich?” case. Let’s now run through the other five cases that Posner discusses:

1. Posner says that when he read Scalia and Garner’s statement that the Kansas supreme court “perversely held that roosters are not ‘animals’” (and that cockfighting therefore did not violate a law against cruelty to animals), he “found it hard to believe,” so he “looked up the case” and “discovered that the court had not held that roosters are not animals.” “In fact,” he writes, “the court said that ‘biologically speaking a fowl is an animal,’ but that it was not in the class of animals protected by the statute.”

Posner’s quarrel is baffling. When Scalia and Garner state that the court held that roosters are not “animals” (“so that,” as they immediately continue, “cockfighting was not outlawed by a statute making it illegal to ‘subject[] any animal to cruel mistreatment’” (p. 72)), the intelligent legal reader would understand that, by putting the word animals in quotes, they are referring to the statutory term. No intelligent legal reader would understand them to have alleged that the court was asserting that roosters are not, as a biological matter, animals. Their statement of the court’s holding is sound, as the reader will discover for himself by reading the ruling.

Further, it is Posner’s account of the court’s reasoning that is distorted. The court’s own recognition of the biological reality is grudging (“even though we must recognize that biologically speaking a fowl is an animal”), and the point that it makes “First of all” is that “we harbor the opinion that in the common everyday experience of mankind chickens are seldom thought of as animals; rather, they are birds, with avian characteristics, in contrast to beasts of the field.”

Posner also asserts that Scalia and Garner ignore “all” the reasons the court gave for its conclusion. That is neither true nor significant. Although the trusting reader of Posner would have no way of knowing it, Scalia and Garner’s discussion of this supposed “exemplar[] … of textual originalism” consists of a single sentence, supported by a case citation in a footnote. They use the case for the limited purpose of supporting their proposition that “Courts have sometimes ignored plain meaning in astonishing ways,” so there would be no reason for them to summarize the court’s reasoning in detail. Even then, the parenthetical to their case citation states that the court noted that the “cruelty-to-animals-statute had traditionally applied only to four-legged animals.”

Continuing his hyperbolic account of the role that Scalia and Garner accord dictionary definitions (see point 3 of my original post), Posner also falsely contends that Scalia and Garner complain that the court’s holding was “in defiance of the dictionary.” They refer broadly to “plain meaning,” not narrowly to dictionary definitions.

2. Posner contends that Scalia and Garner say that a court “correctly decided [a] case … on the basis of the dictionary definition of ‘into’” but that they “misread the court’s opinion.” According to Posner, the opinion “calls the entire expression ‘from any location into any occupied structure’ ambiguous” and “went on to decide the case on other grounds.”

Scalia and Garner use the case to illustrate the proposition that the ordinary-meaning canon ”[s]ometimes … governs the interpretation of so simple a word as a preposition” (p. 71). Their one-paragraph discussion therefore focuses on the aspects of the opinion that bear on that point, but they don’t claim that the court decided the case solely on the basis of “into” (much less solely on the basis of the dictionary definition of the word).

Further, Posner’s account of the opinion itself is incompetent. He is correct that the court found the phrase “from any location into an occupied structure” to be ambiguous, but, far from deciding the case “on other grounds,” the court determined that “the plain meaning of the word ‘into’ suggests that the shooter must be located outside the structure” and that this was the “best and logical reading of the statute” (slip op. at 14). (The court went on to add that the rule of lenity “further supported” its interpretation.)

More in my next post.

 

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.

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

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?

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

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) 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.

More Posner Delusions

The New Republic has now posted online Bryan Garner’s response to Judge Richard Posner’s incompetent and libelous review of the treatise that Garner co-authored with Scalia, together with Posner’s rambling reply to Garner.

Rather than directly contest a single point in my five-part series, Posner resorts to the ad hominem fallacy, as he tries to dismiss me in his opening paragraph by asserting that I head “an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.” His attack is a logical fallacy because, even if its factual assertions were true, they have nothing to do with the merits of my criticisms. But his factual assertions also aren’t true.

I don’t in fact believe, and I don’t believe that I have ever said anything that can fairly be reduced to, the proposition that “homosexuality … is destroying the American family.” Quite to the contrary, I have written that the collapse of our marriage culture is “largely the result of what heterosexuals have done to marriage in recent decades.” Posner of course—consistent with his usual pattern of sloppiness—doesn’t bother to cite anything for his false assertion.

As for Posner’s disparagement of the think tank I head, the Ethics and Public Policy Center: EPPC may fairly be described as conservative, but I don’t see how anyone familiar with the American political spectrum could fairly describe it as “extreme conservative.” His claim that we are “preoccupied with … affronts to conservative theology” is inane: our scholars, of various faiths (or no faith), set forth their public-policy positions on grounds of reason, not theology. The claim that we are “preoccupied” with certain issues of course begs the question what the proper level of attention to such issues is, but the reader reviewing our website and the work of our scholars should find Posner’s claim baffling.

Posner’s Bewildered Reply to Garner

Now that I’ve addressed Richard Posner’s diversionary ad hominem attack on me, let’s look at the merits—or, more precisely, the stunning lack of merit—of Posner’s response (beginning on this page) to Bryan Garner’s critique of his review of the book that Garner co-authored with Scalia:

Posner states that Garner “repeats criticisms” that I have made, and he uses that observation to ignore the criticisms that I have made. In fact, Garner credits me for having “done a masterly job of demonstrating why the six examples that Judge Posner assails … are entirely correct.” Far from repeating what I have to say on Posner’s attention-grabbing—and, it turns out, incompetent—claim that Scalia and Garner have misrepresented the cases they cite, Garner is embracing, and incorporating by reference, my Part 2 and Part 3 critiques. It is, I would submit, telling that Posner fails to take on my critiques while giving his readers the false impression that he is doing so.

Any competent reader of Scalia and Garner’s book would recognize that they cite cases for the specific purpose of illustrating particular canons—not, as Posner contends, as “exemplars … of textual originalism” in general. It’s bad enough that Posner somehow failed to recognize that elementary point when he published his review. It’s even worse that he won’t even accept Garner’s simple explanation that that’s what he and Scalia are doing.

More amazingly, Posner tries to prove that Garner’s explanation is “untrue” by recycling Posner’s woeful confusion about the rooster case. As I explained in my Part 2 post:

Posner says that when he read Scalia and Garner’s statement that the Kansas supreme court “perversely held that roosters are not ‘animals’” (and that cockfighting therefore did not violate a law against cruelty to animals), he “found it hard to believe,” so he “looked up the case” and “discovered that the court had not held that roosters are not animals.” “In fact,” he writes, “the court said that ‘biologically speaking a fowl is an animal,’ but that it was not in the class of animals protected by the statute.”

Posner’s quarrel is baffling. When Scalia and Garner state that the court held that roosters are not “animals” (“so that,” as they immediately continue, “cockfighting was not outlawed by a statute making it illegal to ‘subject[] any animal to cruel mistreatment’” (p. 72)), the intelligent legal reader would understand that, by putting the word animals in quotes, they are referring to the statutory term. No intelligent legal reader would understand them to have alleged that the court was asserting that roosters are not, as a biological matter, animals. Their statement of the court’s holding is sound, as the reader will discover for himself by reading the ruling.

Posner completely ignores what I have written—the very account that Garner has embraced—and repeats his incompetent error.

Posner then purports to provide another example of a case that Scalia and Garner supposedly misrepresent and, with bravado, says that he “will be glad to furnish others on demand.” But Posner’s newest example, like all his others, rests on his false claim that Scalia and Garner are using the case for purposes other than to illustrate a specific canon. His offer to furnish other such examples brings to mind the inmate in the insane asylum who will gladly offer endless evidence, of quality comparable to Posner’s, that he is indeed Napoleon.

Indeed, to put the matter somewhat delicately, Posner’s review, his response to Garner, and his ad hominem ducking of my critique would seem to demonstrate that Posner is, on the matter of Scalia and Garner’s book, beyond the reach of reason.

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.)

 

Posner Self-Immolation Watch #2

1. Law professor Stephen Bainbridge’s succinct assessment:

Posner’s losing it. sad.

2. On the other hand, an e-mail from a lawyer who served as a Seventh Circuit law clerk many years ago suggests that Richard Posner’s loss may not be so recent:

As a judge, he seemed totally unconcerned with the details and the record, and at times, his opinions, though entertaining, bordered on the absurd. When I clerked, his style was very free-wheeling and unpredictable. He seemed to view precedent as marginally relevant. It was as if he went to his chambers after oral argument and banged out opinions in a stream of consciousness manner. His law clerks told me that they would try to fix his screw-ups when they found contrary precedent. It did not always work. For a guy with his obvious intellect, this was very surprising.

3. Given all of Posner’s smears and other sloppy errors, I initially passed over his extraordinary insinuation, in his reply to Bryan Garner, that Garner was lying in stating that he “had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book.” But this blog post by Bart Torvik caused me to reconsider.

Let me first quote in full what Posner had to say on this point:

I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. The book is riddled with inaccuracies, illustrating the adage that too many cooks spoil the broth. The Acknowledgments thank nine “Garner Law Scholars” at a Texas law school who “briefed dozens of cases for our [the authors'] consideration.” I am guessing the Garner Law Scholars were the source of many of the mistakes.

So Posner “ha[s] trouble believing Garner” on this point! What might justify Posner’s suggestion that Garner is lying? It’s odd enough that Posner would base such a suggestion on inferences drawn from the book’s Acknowledgments. But it’s even worse that, contrary to what Posner says (and as Torvik points out), the Acknowledgments include this statement:

At LawProse, Inc. in Dallas, we had the benefit not only of a fine law library but also of several accomplished legal researchers: Tiger Jackson, Jeff Newman, Becky R. McDaniel, Heather C. Haines, Timothy D. Martin, and Eliot Turner.

I have inquired of Garner, who tells me that the “four lawyer-colleagues” he referred to are the first three individuals in that list (all of whom have worked on Black’s Law Dictionary) and Karolyne H.C. Garner, who, in addition to being his wife, is a contributing editor for Black’s Law Dictionary and who is named in the Acknowledgments among those “who commented critically and copiously on the manuscript.”

Notwithstanding his pretension of thoroughness, Posner somehow seems to have missed Garner’s listing of his LawProse colleagues. (As Torvik points out, he has also miscounted the number of persons thanked in the Acknowledgments.) And, having generated a review that, as I have shown, is rife with errors, he baselessly asserts that Scalia and Garner’s book “is riddled with inaccuracies”—and freely casts aspersions on some law-school students who merely “briefed” cases for Scalia and Garner’s “consideration.”

Unbelievable—but on par with Posner’s entire performance on this matter.

Posner’s Confused Response to Scalia

Richard Posner’s downward spiral continues.

Earlier this week, Justice Scalia made some news when he charged that Posner’s claim—in his wildly incompetent review of the new treatise co-authored by Scalia and Bryan Garner—that Scalia was “doing legislative history” in his Second Amendment ruling in District of Columbia v. Heller was “simply, to put it bluntly, a lie.” (See transcript, p. 21.) Posner has now posted a response that undertakes to defend himself against the charge.

Posner’s response sets forth two defenses. First, Posner contends that what he (Posner) means by legislative history includes Scalia’s “historical inquiry” into “a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense.” By contrast, he says, Scalia “defines legislative history very narrowly” to exclude that “historical inquiry.”

By conflating legislative history with background context, Posner has concocted an incredibly expansive definition of “legislative history” under which every inquiry into original meaning would necessarily involve use of legislative history. I’ve never encountered such a definition before. Posner himself has previously distinguished the narrower term “legislative history” from the broader background context, or “real history,” of a statute. As he put it in Sundstrand v. Commissioner of Internal Revenue, 17 F.3d 965, 967-968 (7th Cir. 1994) (citations omitted):

The term “legislative history” picks up some peculiarly unreliable “historical” guides to meaning—the statement of a single legislator, on a day when the chamber may have been empty; a statement not made on the floor at all, but inserted in the record of the proceedings later; a passage in a committee report that may have been inserted by a lobbyist or a committee staff member and not scrutinized carefully by other members of the committee; a passage inserted by an opponent of the bill, designed to impart a particular “spin” to it—or by a proponent, designed as an invitation to a sympathetic court to “restore” a provision that had been deleted in a compromise with opponents. The concern that a number of judges have expressed with regard to the use of legislative history, though possibly overstated, dictates caution in its use. But it does not touch the use of “history” in a broader sense to illuminate a statute that may be ambiguous not because any individual sentence or clause in it is ambiguous but because some of its sentences or clauses don’t fit together clearly or don’t mesh with rather obvious realities of the subject matter of the statute….

Section 1481 has a history, and it is time that we attended to it—a real history, unaffected by any self-serving or tendentious comments in the “legislative history.” [Proceeds to discuss background context.]

Indeed, it’s obvious that Posner wasn’t using his newfound hyper-distorted concept of legislative history in his book review, for if he had been, he wouldn’t have (confusedly) contended that the “legislative history of the Fourteenth Amendment …should be anathema to Scalia” (emphasis added), and he wouldn’t have (confusedly—see point 4 here) faulted Scalia and Garner for citing an opinion that “referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.”

To put the point another way: Posner was contending in his review that in Heller Scalia failed to follow his own rule against misuse of legislative history. That contention of hypocrisy would collapse into meaninglessness if Posner meant the term legislative history to include the very materials at the core of an original-meaning inquiry.

Posner also tries to invoke Garner against Scalia, even though Scalia and Garner have co-written a 20-page section (pp. 369-390) against the use of legislative history “to establish what the legislature ‘intended’” (p. 388). Posner thinks it significant that Black’s Law Dictionary, edited by Garner, defines legislative history as “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” But it’s tendentious to read “background and events” as referring to matters outside the legislative body. The note in the Black’s definition that Posner doesn’t see fit to quote—”Legislative history is sometimes recorded so that it can later be used to aid in interpreting the statute”—reinforces the point.

Posner’s second ground of defense is that even under Scalia’s “narrow definition” of legislative history, Posner is correct that Scalia was “doing legislative history” (the phrase from his review) in Heller. Here is Posner’s entire supporting argument:

For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598-599, 603-605.

Let’s look at the pages that Posner cites (which roughly correspond to pages 25-26 and 30-32 of the slip opinion):

To begin with the second cite: The reader will discover that Posner plucks the term “drafting history” from a sentence in which Scalia faults Justice Stevens for “rel[ying] on the drafting history of the Second Amendment.” After stating that “It is dubious to rely on such history,” Scalia continues: “But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record.”

In short, Scalia is not invoking the “drafting history” as evidence of what the drafters intended the Second Amendment to mean. Rather, he is refuting Stevens’s use of it (just as he has frequently argued, as in his concurring opinion in Conroy v. Aniskoff, that the legislative history that his colleagues invoke doesn’t in fact support their use of it).

As for the first pages cited: As I pointed out in my Part 1 post (in point 2), Scalia and Garner spell out quite clearly in their treatise how the use of legislative history “to establish what the legislature ‘intended’”—the use they object to—”is quite different from using it for other purposes,” including “for the purpose of establishing linguistic usage—showing that a particular word or phrase is capable of bearing a particular meaning” (p. 388). This distinction mirrors the distinction in originalism between the original-intent methodology (which Scalia rejects) and the original-meaning methodology (which he embraces). As Scalia puts it in A Matter of Interpretation (p. 38), he

will consult the writings of some men who happened to be delegates to the Constitutional Convention … not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood…. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the draftsmen intended.

What Scalia is doing in Heller in the passage that Posner cites is offering evidence of original meaning—showing how the prefatory clause of the Second Amendment “fits perfectly” with its operative clause. (Law professor Josh Blackman develops this point more fully.)

In fairness to Posner, I suspect that he and Scalia are simply talking past each other. Posner appears entirely inattentive to Scalia and Garner’s distinction between legitimate and illegitimate uses of legislative history. So when Posner charges that Scalia was hypocritically “doing legislative history” in Heller, Scalia reasonably understands Posner to be falsely contending that Scalia was invoking the drafting history of the Second Amendment in order to establish some sort of intent of the Framers. But it seems far more likely that Posner doesn’t have this specific contention in mind and that his charge of hypocrisy rests (as Josh Blackman also suggests) on his jurisprudential confusion about originalism.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.