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The Scalia-Posner War and Why it Matters

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Over the last couple of weeks, Justice Antonin Scalia and Judge Richard Posner have been engaged in an unusual public feud over the role that legal rules play in judicial decision making. In The New Republic, Judge Posner wrote an exceptionally harsh review of Scalia's new book Reading Law: The Interpretation of Legal Texts, written with Bryan Garner. Scalia's book presents over 50 canons or legal rules that he and Garner suggest can and do help judges decide hard legal issues. In a lengthy response, Posner demonstrates that Scalia's rules cannot decide cases, that the sources and cases the authors cite don't stand for the propositions for which they are asserted, and that, of course, at the end of the day, what decides cases are the judges' personal and political values, preferences, and balancing of the equities of the parties' positions, not pre-existing legal rules.

Do legal rules and canons of interpretation decide cases? Of course not, Posner argues forcefully and persuasively. After his review was published, Scalia followers, fellow conservatives, and Garner, the co-author, took great offense in various forms of social media. In The National Review Online, former Scalia clerk Ed Whelan wrote a five part rebuttal to Posner's review discussing in specific detail the battles over the details of the many cases in dispute, and calling Posner's article a "wildly incompetent review." Meanwhile, Garner the co-author, went online defending his and Scalia's use of the cases, suggesting Posner completely missed the point of the book, and publicly taking Posner to task for what Garner apparently believes was the betrayal of a friendship. Garner then wrote a letter to The New Republic and Posner has responded.

For non-lawyers, or even well-intentioned and studious lawyers and law professors, the debates over what the cases actually said, whether the Scalia/Garner version or the Posner version is more persuasive, and the role that legal rules played or can play in these cases will remain a mystery. But who is right and who is wrong about the role of canons of interpretation in the lower courts is not the important issue raised by this public boxing match between two of our most important judges. There is a lot more going on here, and much more at stake, than an "inside baseball" squabble over legal rules. In light of Scalia's importance as a political actor who makes a big difference to how this country is governed, the question is whether he is an appropriate messenger for the proposition that judging involves mostly rule following and not the exercise of personal discretion. The answer is no.

Scalia purports to be a "textualist-originalist" and he claims to apply that philosophy to his work on the Court. Constitutional interpretation should be about text and history, not personal values. The problem is that almost no one believes this anymore and Scalia's public defense of the indefensible probably accounts for the tone of Posner's review.

The sources of constitutional law are vague (due process, liberty, equal protection, etc.,), the history of provisions almost always contested (does the Second Amendment apply to just militias or to people), and the Court is not bound by its own cases and frequently the law of the Constitution changes as the Justices and their politics change. The reason why Justices Scalia and Ginsburg (they are friends) disagree on almost every contested issue of constitutional law is not because one applies better canons of construction than the other or one is a better legal interpreter than the other, but because they embrace different personal values and life experiences. Posner knows this, described how the Justices decide cases in his book How Judges Think, and being an appellate judge himself wants to set the record straight when it comes to the relationship between judicial discretion and the resolution of hard legal issues. Posner knows that Scalia's public misstatements on this issue carry a great cost.

The drafters of the Fourteenth Amendment did not believe racial preferences for blacks violated the Equal Protection Clause yet Scalia, despite his alleged devotion to originalism, has never voted to uphold an affirmative action program. The drafters of the First Amendment believed that corporations had no legal status separate from the rights given them by the state, yet Scalia claims corporations have the same First Amendment rights as natural persons. And, just to be politically neutral about all this, the founding fathers would not have recognized flag burning as "speech" protected by the First Amendment, yet Scalia voted to reverse the conviction of a flag burner on First Amendment grounds. Scalia relies no more (or less) on text or history than any other Supreme Court Justice; he just indignantly claims that he does.

The battle between Posner and Scalia is about how judges, especially Supreme Court Justices, decide cases, and that issue is crucially important to our constitutional democracy. Because Posner believes judging, especially at the Supreme Court level, is about values and discretion, he urges the Court to defer to the elected branches absent a clear conflict between a law and constitutional text. Scalia does not apply such deference, though he often claims he does. In a few months, the Court will likely decide whether the University of Texas may use racial preferences to redress generations of discrimination, and whether Congress may continue to insure that states with a history of voter suppression don't make it harder for minorities to vote. The relevant text and history of these two disputes will be contested and Posner would likely defer to politically accountable officials on both questions. Scalia will almost certainly vote to strike down these efforts to confront our racist past and then claim that neutral canons of constitutional interpretation require him to do so. On this battleground, whether judges decide by rules or by discretion, the history of the Supreme Court demonstrates clearly that Posner is carrying a nuclear weapon and Scalia a bow and arrow.

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