Patterico's Pontifications


Wow: Scalia Says Posner “Lied”

Filed under: General — Patterico @ 7:29 am

It happened several days ago but I just saw it:

U.S. Supreme Court Justice Antonin Scalia on Monday escalated a war of words with a prominent appeals court judge, saying the judge lied in a recent criticism of Scalia’s judicial philosophy.

Scalia, 76, the longest-serving justice and a leading conservative on the court, said Judge Richard Posner, of the 7th U.S. Circuit Court of Appeals, lied in a review in August of a book co-authored by Scalia.

In the review, Posner accused Scalia of deviating from his own strict, text-based approach to interpreting law when he struck down a District of Columbia handgun ban in 2008 by considering the legislative history behind the law.

“To say that I used legislative history is simply, to put it bluntly, a lie,” Scalia said in an interview with Reuters Editor-in-Chief Stephen Adler.

Jeez. You hate to see something like that. At the same time, if I’m going to take sides, I’m taking Scalia’s.

For what it’s worth, I obtained Scalia’s book through an inter-library loan and perused it (they didn’t allow me to renew it so I didn’t have a chance to read the whole thing). He says some interesting and provocative things about the benefits of textualism which I copied down and will post on at a later date.

15 Responses to “Wow: Scalia Says Posner “Lied””

  1. Hey, he said he was putting it “bluntly”, and he did.

    Man’s no liar.

    Icy (f5a1fc)

  2. I guess it depends on what the meaning of “legislative history” is. Scalia’s opinion in Heller is mostly a historical treatise on the laws defining “keep”, “bear”, and “militia”, in England and in the colonies.

    nk (875f57)

  3. In this dispute, I’ve lost respect for both men. Their language has been over the top, which is a shame because its an important topic about which both men have important things to say.

    SPQR (26be8b)

  4. Posner’s always been an a-hole. Even in published opinions. Judges I’ve talked to about him, up here, complain that he never gives their decisions a fair hearing and they would not mind that so much if not for the professor-of-economics snark.

    I wish Kennedy had written Heller. But in view of subsequent events, we then likely would not have had Roberts’s vote.

    nk (875f57)

  5. You used “perused” incorrectly.

    Ajw (f6011e)

  6. Sure, and you are black-body opaque. Buy a life.

    gary gulrud (dd7d4e)

  7. You used “perused” incorrectly.
    Comment by Ajw — 9/28/2012 @ 9:29 am

    — You have grammar-copped incorrectly.

    Icy (f5a1fc)

  8. A pox on both their philosophies.

    Leviticus (de21bc)

  9. “Scalia’s opinion in Heller is mostly a historical treatise on the laws defining “keep”, “bear”, and “militia”, in England and in the colonies.”

    It’s not legislative history, it’s a history of legislation!

    unskew (6181a3)

  10. What’s the f***** difference?

    Words are conventional and arbitrary. They only mean what people know them to mean. So, according to Scalia, the Founders wrote a law with words that had been litigated and made into law.

    Some people might call that “hairsplitting of textualism intellectualism”.

    I don’t really want to beat up on either of these guys. They are both brilliant legal scholars. But they are also human, with human limitations.

    Leviticus, I believe your opinion will change in the course of the next ten years or so.

    nk (875f57)

  11. I agree with NK. The way to change people’s minds is to be a condescending Pr*ck. With a capital P.

    Innocent Bystander (8d5189)

  12. No disrespect intended, unskew. The common law and equity of England and colonial America are expressly incorporated in the Constitution, I know that.

    nk (875f57)

  13. Scalia focused on the wrong words: The true meaning of the Second Amendment rests on the menaing of the word “people”

    Sammy Finkelman (70f9a1)

  14. We the people at the start of the constitution is not just high sounding words: it’s legal justification for acting unconstitutionally, because the convention ignored the terms for amending the articles of Confederation.

    Sammy Finkelman (70f9a1)

  15. Having read the back-and-forth between these two extensively, I have the urge to respond to a number of the comments posted here.

    Regarding the esteem I gave either of the two jurists, I have gained slightly more for Scalia (largely because it has made me read more of his work and analyze more of his thought). However, I have lost a colossal amount of respect for Judge Posner. For a man that former Yale Law Dean Anthony Kronman called, “[O]ne of the most rational human beings” he knew, this rationalist has completely lost it. Calling Posner a liar pales in comparison to the ad hominem attacks leveled against Ed Whelan and his skepticism of the unimpeachable Bryan Garner’s reply to him (which amounted to calling Garner a liar).

    But perhaps the most damning response came from a man who, as far as I can tell, is a solo practitioner who has a personal legal blog. Like me, he was interested in getting to the bottom of the dispute between these two, and he came to an even worse conclusion–Posner’s review is flatly a hatchet job. And he proves it.


    To repsond to “nk,” it does indeed depend on what legislative history means.

    Legislative history is understood by basically everyone in the legal profession–including those who want to use it to support “purpose of the statute” interpretations–as floor speeches, drafting committee reports, and other background information concerned with the goals behind the specific legislation.

    Scalia rejects this because legislators have a variety of reasons to vote for a law–he only thing they’ve agreed on is the words. However, as you note, words ARE conventional–so Scalia uses historical writings to determine the meaning of the words at the time they were enacted. To do otherwise would give a meaning that shifts–in a way that is unpredictable to legislators–and thus unfaithful to how the legislators cast their vote.

    I fully support this approach as a principle and it is this principle that Posner is attacking. Just so you know I do not give Scalia a pass–I disagree with his conclusion in Heller. It was a sloppy analysis at best–Richard Epstein gives a much better interpretation.

    The real issue is not the legal conclusion–textual originalists can sensibly disagree–it is where the debate should occur. The question that should be asked when debating what interpretation should be given to the statute is: “What meaning could plausibly have been given to the words of this constitutional/statutory provision at the time it was enacted?”

    B (9fff16)

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