Antonin Scalia, Benchslaps, Books, California, Constitutional Law, Federal Judges, Federalist Society, Richard Posner, SCOTUS, Supreme Court

The Benchslap Dispatches: Justice Scalia on Judge Posner’s ‘Hatchet Job’

Justice Scalia (left) and Judge Posner

Over the past few months, Justice Antonin Scalia and Judge Richard Posner have been trading benchslaps. The most recent clash got going a few weeks ago, when Judge Posner wrote a harsh review for the New Republic of Justice Scalia and Bryan Garner’s new book, Reading Law (affiliate link).

Scalia surrogates rushed to the justice’s defense. One of his former clerks, Ed Whelan, wrote a series of posts for the National Review’s Bench Memos blog in which he criticized the Posner review. Justice Scalia’s co-author, Professor Garner, also responded forcefully to Judge Posner (who in turn responded to Garner, again in the New Republic).

But the justice himself remained silent on all of this. When we reached out to both judges about the apparent tiff, Judge Posner denied any personal animosity, but Justice Scalia declined to comment.

Now Justice Scalia has broken his silence. And His Honor seems none too happy with Judge Posner’s book reviewing skills….

Last Thursday, Justice Scalia and Professor Garner gave an hour-long talk in Los Angeles to promote Reading Law. From a report by Ben Adlin of the Daily Journal (sub. req.):

During the event, sponsored in part by the Daily Journal, the authors offered a brief explanation and teaser of the book, which comprises 57 canons of construction, or basic principles regarding how legal text should be interpreted….

The book has received mixed reviews. Many have lauded its thorough research and lucid prose, calling it the most comprehensive treatise on legal interpretation in decades, if not longer. But Posner’s blistering critique, published in The New Republic on Aug. 24, has sparked heated debate….

While there were few open signs of tension at Thursday’s event, Scalia at one point referred to the review as “Richard Posner’s recent hatchet job.”

“You can distort any principle of interpretation,” [Justice Scalia] said, “but the difference is this: Textualism does not invite the judge to apply his own willful predilections, whereas every other philosophy — including Posner’s — invites the judge to do what he thinks is good, what he thinks is right.”

Yikes. If you’re applying for lower-court clerkships now and would love to clerk for Justice Scalia someday, you might want to steer clear of Judge Posner’s chambers. Are we absolutely sure that those snarky unsent Scalia emails to Posner were just a joke?

Some in the crowd said they felt torn after reading the Posner article, though they asked not be quoted. They said his writing influenced their education as lawyers and that the apparently stark contrast of the two sides’ views made them feel they had to choose between competing chiefs.

Others openly expressed disdain for the generally conservative political leanings of Scalia’s decisions. One federal judge in attendance decried textualism, saying it historically was regarded as a far-right, fringe view of how to interpret law.

That’s California for you. I wonder who the anti-textualist federal judge was?

The air of ideological disagreement, however, seemed only to add to the crowd’s enthusiasm.

After the reading, more than 100 people waited for Scalia and Garner to sign their copies of the book, which was given out at the event. The line moved slowly, and Scalia at one point refused to write anything other than his signature, dryly explaining that if he did, he’d “be here all night.”

(Wow. In light of that information, I feel especially blessed to have a personally inscribed copy.)

Given the apparent public enthusiasm for Scalia v. Posner on textualism, wouldn’t it be amazing to see these two great minds debate the subject face to face? Wouldn’t it make for a fantastic fifth annual Rosenkranz Debate at the Federalist Society’s 2012 National Lawyers Convention?

P.S. We realize our coverage of Scalia v. Posner has focused primarily on the personality clash. For substantive discussion of the underlying issues, see this piece by Ed Whelan, collecting his blog posts, and this exchange in the New Republic, pitting Bryan Garner against Richard Posner.

The TNR exchange consists of Professor Garner’s response to Judge Posner, which we’ve mentioned before, and Judge Posner’s response, which is new — and saucy. Some excerpts:

  • “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.”
  • “[Garner] says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand.”
  • “Garner quotes the literary critic Stanley Fish as praising his book. Fish did praise it — in a review in which he also said that the book’s ‘thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences’ is wrong.”

You can read the full response here. This whole thing reminds me of a roommate feud on a reality TV show — except that it’s about stuff that actually matters. Isn’t it grand?

Reading Law [Amazon (affiliate link)]
Justice Scalia, lexicographer draw crowds in LA [Daily Journal (sub. req.)]
How Nuanced is Justice Scalia’s Judicial Philosophy? An Exchange [The New Republic]
Richard A. Posner’s Badly Confused Attack on Scalia/Garner [Ethics and Public Policy Center]
Recent Unsent E-mails from Antonin Scalia to Richard Posner, as Retrieved from Justice Scalia’s “Deleted E-Mail” Files [Concurring Opinions]
Response to Richard A. Posner [LawProse Blog]
The Incoherence of Antonin Scalia [The New Republic]
Of Guns, Abortions, and the Unraveling Rule of Law [Virginia Law Review via SSRN]
In Defense of Looseness [The New Republic]
Richard Posner and David Lat: “Judges as Public Figures” [University of Chicago Law School]

Earlier: Posner v. Scalia: Bryan Garner Tags In
The Benchslap Dispatches: Posner v. Scalia — Is It Personal?
Benchslap of the Day: Justice Scalia Pulls Rank on Judge Posner
Posner Pwns Scalia

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