Antonin Scalia, Benchslaps, Books, Constitutional Law, Federal Judges, Feeder Judges, Richard Posner, SCOTUS, Supreme Court

The Benchslap Dispatches: Posner v. Scalia — Is It Personal?

Justice Scalia (left) and Judge Posner

In case you missed it, you should check out Judge Richard Posner’s recent review of the new book by Justice Antonin Scalia and Bryan Garner, Reading Law (affiliate link). The review is deeply thoughtful and elegantly written, but a bit… harsh. It’s a definite reverse benchslap.

And it’s just the latest blow in an ongoing slugfest between Judge Posner and Justice Scalia, which we’ve chronicled in our pages. In June, Judge Posner criticized Justice Scalia’s dissent in Arizona v. United States. In July, Scalia saucily responded by saying of Posner, “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.”

Ouch. These exchanges got me (and others) wondering: What’s going on between these two eminent jurists?

I reached out to both Justice Scalia and Judge Posner with this question: Is it personal?

Before we get to what the two jurists had to say, let’s take a closer look at the review. You can read it in full in the New Republic, but here are some benchslap highlights:

  • We’ll start with the title (which, it should be noted, Judge Posner was not responsible for; this would have been the work of a TNR editor). When it first appeared on the web, it was called “The Spirit Killeth, but the Letter Giveth Life,” reflecting Posner’s critique of Scalia’s brand of textual originalism. But now it has a much more provocative (and click-driving) title: “The Incoherence of Antonin Scalia.”
  • Heller [the famous Second Amendment case] is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.”
  • “Omitting contrary evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism.”
  • “A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven ‘canons of construction,’ or interpretive principles, and in their variety and frequent ambiguity these ‘canons’ provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.”
  • “Justice Scalia has called himself in print a ‘faint-hearted originalist.’ It seems he means the adjective at least as sincerely as he means the noun.”

These are just a few excerpts; you can read the full review here. For a rebuttal to Posner’s critiques, check out Ed Whelan’s multi-post series over at Bench Memos (part 1, part 2, and part 3). Whelan, a former Scalia clerk, points out that “Posner doesn’t see fit to disclose that Scalia and Garner target him for criticism, including as one of the ‘modern critics … glibly disparaging the canons.'” So if you take into account Justice Scalia’s criticism of Judge Posner in Reading Law, this duel has been going on for even longer than many might realize.

But does the intellectual sparring between these two great minds reflect any kind of personal animus? That’s the question I posed to both of them recently.

Justice Scalia declined to comment, through the Supreme Court’s Public Information Office. But Judge Posner was more forthcoming. Here’s how I framed the question to him over email:

I greatly enjoyed your recent review of Justice Scalia and Bryan Garner’s latest book…. You did such a superb job of using the vehicle of a book review to raise broad, profound questions about constitutional and statutory interpretation.

But the review was… a wee bit harsh! I’m thinking of writing about it for Above the Law, and so I wanted to ask you: How would you characterize your personal relationship with Justice Scalia?

Some of our readers have wondered if you and he might have some personal issue between you? But I do note also that you were colleagues on the Chicago faculty years ago, and he has hired several of your clerks over the years, which usually coincides with friendship (or at least with respect for the training a judge provides to his clerks).

And here’s is Judge Posner’s response:

There is no personal animosity between Justice Scalia and me, or at least not on my side — I haven’t seen him for five or six years (we were at a conference on national security in Ottawa about that long ago). As you point out, we were colleagues in the 1970s at the U. of C. law school before we both became judges. I think I’ve described him in print as the most influential Supreme Court Justice in the period since his appointment, and I certainly adhere to that view.

I suppose it’s unusual for a lower court judge to criticize judicial or extra-judicial work by a Supreme Court Justice in public; but recall that Judge Wilkinson wrote a very critical law review article about Justice Scalia’s opinion in the Heller case. (I wrote a critical article about the opinion, as well, for the New Republic.) It’s probably not an accident that both Judge Wilkinson and I are former academics, to whom disagreement in print, without personal animosity having engendered it, comes naturally.

This is, on one level, nice to hear. It’s good to know that people can intellectually disagree without being disagreeable. Think of prosecutors and defense lawyers who go at each other in court and then grab drinks during happy hour that same day. What takes place in court is a bit of a show.

On another level, though, I hope it doesn’t spell an end to the Scalia/Posner benchslappery. It might be a bit of a show, but it’s just too entertaining to come to an end!

P.S. Benchslap aficionados might be interested in this book that we recently received in the Above the Law mailbag: Benchslapped: Publicly Humiliating Judicial Opinions (affiliate link), by Matthew Bowers.

The Incoherence of Antonin Scalia [The New Republic]
Richard A. Posner’s Badly Confused Attack on Scalia/Garner [Bench Memos / National Review Online]
Of Guns, Abortions, and the Unraveling Rule of Law [Virginia Law Review via SSRN]
In Defense of Looseness [The New Republic]
Reading Law [Amazon (affiliate link)]

Earlier: Benchslap of the Day: Justice Scalia Pulls Rank on Judge Posner
Posner Pwns Scalia

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