Adam Liptak, Antonin Scalia, Books, Constitutional Law, SCOTUS, Supreme Court, Tony Mauro

Justice Scalia and Bryan Garner on the Interpretation of Legal Texts

In case you’re wondering, there was no major news out of the U.S. Supreme Court this morning. Our friends at SCOTUSblog predict that opinions in the marquee cases, such as the Arizona immigration case and the health care reform case (aka Obamacare), will be issued next week. (Above the Law’s own Supreme Court correspondent, Matt Kaiser, should have a more detailed write-up of this morning’s proceedings later today.)

But we do have some SCOTUS-related news to mention this morning (and not just the latest in law clerk hiring). Did you know that Justice Antonin Scalia has a new book out, hitting stores tomorrow?

Tomorrow happens to be my birthday. I think I’ll go out and buy myself this present: Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and legal writing guru Bryan Garner. As you may recall, Justice Scalia and Garner have worked together in the past. They previously co-authored an excellent book on advocacy, Making Your Case: The Art of Persuading Judges.

In their newest book, Scalia and Garner view things from the other side of the bench, from the perspective of the judge rather than the advocate. Here’s a brief blurb from Amazon:

In this groundbreaking book by best-selling authors Justice Antonin Scalia and Bryan A. Garner, all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained in an engaging and informative style-including several hundred illustrations from actual cases. Never before has legal interpretation been so fascinatingly explained….

Justice Scalia, with 25 years of experience on the Supreme Court, is the foremost expositor of textualism in the world today. Bryan A. Garner, as editor in chief of Black’s Law Dictionary and author of Garner’s Dictionary of Legal Usage, is the most renowned expert on the language of the law. Reading Law is an essential guide to anyone who wishes to prevail in a legal argument-based on a constitution, a statute, or a contract. The book is calculated to promote valid interpretations: if you have lame arguments, you’ll deplore the book; if you have strong arguments, you’ll exalt it. But whatever your position, you’ll think about law more clearly than ever before.

Tony Mauro reviewed the book last week for the National Law Journal. Here’s how Mauro described it:

Overall, the 567-page book is an extended plea for judges to hew to the text of statutes and the Constitution in making their decisions and to ignore extraneous factors such as legislative history, the workability of the statute, and the presumed purpose of legislation — though it says that the tongue-twisting “purposivist” approach is sometimes relevant. “We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation” about the drafters’ intentions and the law’s anticipated consequences.

Textualism coming from Scalia is no big surprise. But their new book speaks in terms of specifics as well as generalities, according to Mauro:

Reading Law is structured as a catalog of the canons of interpretation – 57 in all – complete with their Latin roots, in many cases. An example from chapter 10: expressio unius est exclusio alterius is the negative-implication canon, meaning that if a text explicitly covers one thing, it usually means that it does not cover other things. The authors gave a real-life illustration: “When a car dealer promises a low financing rate to ‘purchasers with good credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.”

In a piece over the weekend in the New York Times, Adam Liptak examined the book in terms of the light it might shed on Justice Scalia’s rulings in future cases. Liptak noted, for example, that based on the justice’s comments in the book about Wickard v. Filburn (1942), Scalia probably won’t be siding with the government on the constitutionality of the Patient Protection and Affordable Care Act.

That seems like a pretty safe bet. But hey, who knows? The book does begin with a disclaimer: “The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the United States Supreme Court.”

Reading Law: The Interpretation of Legal Texts [Amazon (affiliate link)]
Hints in New Scalia Book of Views on Health Law [New York Times]
In second book, Scalia, Garner warn judicial decisions leading to ‘descent into social rancor’ [National Law Journal via WSJ Law Blog]

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