Antonin Scalia, Benchslaps, Books, Constitutional Law, Federal Judges, Federalist Society, J. Harvie Wilkinson III, Law Professors, Law Schools, Orin Kerr, Richard Posner, SCOTUS, Supreme Court

Judge Posner on Statutory Interpretation: This Is How We Do It

This past Wednesday, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put “at” Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled “How I Interpret Statutes and the Constitution,” Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

Yes, readers. There will be benchslaps….

Judge Richard Posner (via video conference)

Judge Posner spoke for about 35 minutes, then took questions for another half hour. You can access video of his talk on the Columbia Law website.

As you can see from the footage, Judge Posner wore an olive suit, green plaid tie, and button-down shirt for the occasion. It was a good look; the suit and tie matched well (although personally I prefer non-button-down shirts with the suit-and-tie look). The 73-year-old jurist appeared to be highly energetic and healthy. (For what it’s worth, he’s one of the fastest people I know in terms of responding to email messages; I don’t know how he does it, considering his prolific output of books, magazine and newspaper articles, and judicial opinions.)

Judge Posner began his remarks by introducing two books that he was recently asked to review for The New Republic: Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Professor Bryan Garner, and America’s Unwritten Constitution: The Precedents and Principles We Live By, by Professor Akhil Reed Amar. He emphasized that it was TNR’s idea for him to review these books — perhaps to preempt any criticism that he wanted to review them so as to perform hatchet jobs on them.

He very quickly let the audience know his views on both books (around the 2:45 mark): “I thought they were interesting. I don’t think they’re good, although the authors are bright.”

Ouch. “The authors are bright”? The authors — Justice Scalia, Professor Garner, and Professor Amar — are among the leading lights of the legal profession, more used to being called “brilliant” rather than “bright.” And yet Judge Posner rendered his dismissive verdict in the most matter-of-fact manner.

(And that’s how Judge Posner rolls. As I wrote back in 2005, “The Posnerian prose style is wonderfully dry, and Judge Posner’s amazing writerly feat is his generation of delight from desiccation…. And when he cuts you down, with a clean slice of his linguistic lightsaber, his face bears no expression. It’s all done with a clinical elegance; disdain is a dish best served cold.”)

Let’s start with Judge Posner’s comments on America’s Unwritten Constitution (affiliate link), the new book by Professor Amar (my former Con Law prof). Here are some highlights, from Professor Orin Kerr over at the Volokh Conspiracy:

Judge Richard Posner offers a rather harsh critique of Akhil Amar’s new book The Unwritten Constitution in a video presentation recorded [on Wednesday] that you can watch here, hosted by the Columbia chapter of the Federalist Society. Posner argues that Amar’s theory is just an effort to recast the Constitution into whatever Amar likes as a policy matter. Amar’s book also shows how divorced academic theorists have become from actual legal decisionmaking. In Posner’s words, “no judge or practicing lawyer would touch this book with a 10-foot pole.”

Yup, that’s an accurate summary of the benchslaps. In addition, Judge Posner described the book as “extremely strange” (3:47).

Judge Posner offered two takeaways about the book (around the 9:00 mark). First, he argued that the book embodies the “living constitution” or “unanchored imagination” school of constitutional theory: “If you’re clever, like Amar… you simply imagine ways in which one could somehow impose on the Constitution your political views. I don’t think that’s going anywhere.”

Second, he contended that the book reflects “the drift of the legal academy away from the profession” (9:40). Although America’s Unwritten Constitution is “very well-written” and Amar is “very knowledgeable,” Judge Posner claimed that “no judge or practicing lawyer would touch this book with a ten foot pole, because it is so remote from any kind of professional conception of interpretation.”

In sum, opined Judge Posner, “I don’t really see the point of this literature at all… It is not a guide for judges.” (For more, read his full review of Professor Amar’s book over at The New Republic.)

Judge Posner then turned his attention to Reading Law, by Justice Scalia and Professor Garner….

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