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Quote of the Day: A Time-Out in Posner v. Scalia?

Justice Scalia (left) and Judge Posner

Responding to a Supreme Court Justice who calls one a liar requires special care in expression.

— Judge Richard Posner, in a cover email introducing his written response to Justice Antonin Scalia’s recent “You lie!” accusation.

(More about this tiff, which we’ve been covering quite closely here at Above the Law, after the jump.)

As we’ve previously discussed, Justice Scalia was not happy with Judge Posner’s critical review of Justice Scalia and Bryan Garner’s latest book, Reading Law (affiliate link). In a book event on the West Coast, Scalia called the review a “hatchet job.” More recently, in an appearance in New York that I covered, Justice Scalia essentially stated that he wouldn’t dignify this “glossy magazine” pabulum with a response.

But Justice Scalia wasn’t completely silent on the subject of Judge Posner’s review. In a recent interview with Stephen Adler of Thomson Reuters, the justice criticized Judge Posner’s treatment of Scalia’s opinion in District of Columbia v. Heller, the landmark Second Amendment case. More specifically, he bristled at Posner’s suggestion that his Heller opinion invokes “legislative history,” which Scalia loathes. From the ABA Journal’s distillation of the justice’s comments:

To say that I used legislative history is simply, to put it bluntly, a lie. Any legal audience knows what legislative history is. It’s the history of the enactment of the bill. It’s the floor speeches. It’s the prior drafts of committees. That’s what legislative history is. It isn’t the history of the times.

The justice added, “You can get away with it in The New Republic, I suppose, but not to a legal audience.”

So how did Judge Posner respond? Carefully (as suggested by the Quote of the Day above). Yesterday he sent a two-page written response to Thomson Reuters. Here’s the key section:

I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment.

He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.

Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” 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.

You can read the full statement over at Thomson Reuters.

So this is actually — and it pains me to say this — not a very sexy debate. First, it’s a definitional debate over the meaning of “legislative history.” Second, it’s not even a very meaningful definitional debate, since both combatants spell out what they mean by “legislative history” in a way that reveals they have no major substantive disagreement (at least on this issue). Third, as Posner points out in his response, as a technical matter he didn’t even accuse Scalia of “resorting to” legislative history in Heller; that was really Adler’s gloss.

Here is what Posner wrote: “when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions — as he did in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment — Scalia is doing legislative history.” One could translate “doing” in this passage as “engaging in something comparable to” or “engaging in something not dissimilar from” the true “legislative history” that Scalia so loathes. But Posner’s review never says that Scalia “actually resorts to legislative history,” which is how Adler phrased it during the interview — and which is what drew Scalia’s accusation of dishonesty.

Based on the back-and-forth so far, who has the better of the argument? It seems to me that both jurists make valid points. I can see the validity of Scalia and Garner’s claim that Posner, in his critical reading of how they analyze certain cases, may have overemphasized the prescriptive over descriptive elements of the book — i.e., how they use various cases in the book to illustrate different canons of construction, not necessarily as vehicles for advocating textualism or originalism. But I can also see the validity of Posner’s point that the canons of construction, given their numerosity and their influence, could work to undermine the determinacy and political legitimacy that are supposed to be the cardinal virtues of originalism and textualism.

Readers, what do you think? Here’s an admittedly imprecise poll, just to get a sense of overall sentiment. Of course, your views on specific arguments by either Scalia or Posner are welcome in the comments.

On the whole, who do you think has the better of the argument in Posner v. Scalia?

View Results

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Leading judge hits back in dispute with U.S. Justice Scalia [Thomson Reuters News & Insight]
Text of Judge Posner’s response to Justice Scalia [Thomson Reuters News & Insight]
Posner Fires Back in Spat over Scalia’s Book and the Definition of Legislative History [ABA Journal]

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