We have extensively covered in these pages the academic spat between Judge Posner, Justice Scalia, and Professor Garner, so we’ll be (relatively) brief here. For the full background, read through the ATL links collected at the end of this post.
According to Posner, textualists like Scalia and Garner argue that their interpretive methodology has the virtue of preventing judges from letting their personal views and political preferences affect their judicial decisionmaking. In Posner’s view, “I don’t think this works at all…. [Reading Law] is disingenuous.” He also offered some criticisms of how the authors use various cases in the book (which you can read about in his New Republic review and Garner’s response).
In some reviews of Posner’s TNR review (yes, this is getting “meta”), the judge received criticism for misapprehending one of the main purposes of the book, namely, to analyze the leading canons of construction. Perhaps in response, he focused more on the canons in his Columbia remarks.
AI Is Reshaping Legal Practice—But Tools Aren’t The Real Differentiator.
Explore the mindset, cultural shifts, and training strategies that define the AI‑savvy lawyer, revealing why human judgment, standardized competence, and integrated learning—not technology alone—will shape the future of the profession.
Scalia and Garner review about 70 canons of construction, approving of 57 and disapproving of 13; the 57 approved canons then become their guides for interpretation. The remarkable thing, in Posner’s reading, is that “most of [the canons] are simply not textual” — and of the canons that are textual, some of them contradict each other. For example, take the canon that “[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt” (canon no. 38 in the book). According to Posner, this isn’t a textual canon; it’s just a rule about what you do in a case of ambiguity. Or take the rule of lenity, providing that “[a]mbiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant’s favor” (canon no. 49). This isn’t a text-based rule of interpretation, in Posner’s view; “it’s judges trying to make our governmental system a little more civilized.”
(As an aside, Judge Posner isn’t even a fan of the term “canons of construction.” These are merely principles of interpretation, he said, so “why do they use words like ‘canons of construction? What kind of language is that? It’s not English.”)
What, in Posner’s view, is the problem with the canons? They undermine textualism, insofar as so many of them are not purely textual. The canons give judges leeway to look at considerations extrinsic to the text — which, according to textualists like Scalia and Garner, judges are not supposed to do. The canons can be manipulated to reach a judge’s desired outcome for a case.
Furthermore, Posner argued, even assuming good-faith application of the canons, relying on the canons simply involves “replacing one type of complexity with another.” Mastering the 57 approved canons and their interaction with one another is no easy feat, especially since some are esoteric or exist in tension with each other. “All the time you spend learning about the canons is time taken away from trying to understand the real-world context of litigation.”
AI Built for Litigation. Verified by Design.
Grounded in authoritative content and verified at every step, Protégé is the only legal AI tool that delivers work you can trust—without exception.
To sum up, according to Posner (52:00), “the 57 canons do not have any actual coercive effect. They’re too many of them, they’re loose, they’re contradictory. [Justice Scalia] can achieve any result he wants with his canons.”
So, if textualism and the canons don’t work, what should judges do when interpreting statutes or the Constitution? Judge Posner said this (around the 30:00 mark): “I only want to talk for four more minutes before taking questions and comments. But I don’t need four minutes to explain my theory of statutory and constitutional interpretation because I have no theory.”
(Judge Posner’s opposition to high theory reminded me of the position staked out by another prominent jurist, Judge J. Harvie Wilkinson of the Fourth Circuit, in Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (affiliate link). Although Judge Wilkinson critiques Posnerian pragmatism in his book, I’m not sure how different their approaches are at the end of the day. For a concise summary of Judge Wilkinson’s book, see this review by Professor Zachary Baron Shemtob.)
According to Judge Posner, judges are — and should be — “eclectic” in going about the task of interpretation. The act of interpretation is “an entirely natural thing, and we do it all the time. We are constantly interpreting what people say to us, what we read, the expressions on people’s faces… Interpretation is a fundamentally human capacity, and I don’t think it is improved by having rules.”
Take legislative history, which Scalia famously opposes. Scalia advocates banning the use of legislative history in statutory interpretation. But Posner would not impose such a rule; some legislative history is cooked up or added after the fact, but some legislative history is legitimate and useful. Judges just need enough common sense and knowledge of the legislative process to tell the difference between the two.
Where does this emphasis on common sense leave the canons, in Posner’s view? “The canons to some extent codify common sense,” he observed, “but I don’t think you have to have read any canons to have that common sense.”
During the question-and-answer session, Judge Posner fielded an excellent question about the public’s misconceptions about judging. His main complaint: judges don’t want to talk bluntly about the legislative or quasi-legislative activity that they engage in. Judges want to present a world in which they just interpret but don’t make the law. (This made me think of Chief Justice John Roberts’s famous “umpire” analogy.)
But the reality is known to judges, according to Posner. Judges exercise a discretion that is a form of limited legislative power. In many cases, yes, the statute is clear and its application is clear. But there are plenty of cases — the interesting ones, the ones that involve serious ambiguities and uncertainties, the ones that go up to the Supreme Court — in which judges are making law, whether they want to admit it or not. Said Posner: “I don’t know why we are quite so bashful in saying this.”
Judge Posner, for his part, is most definitely not “bashful.” Whether you agree or disagree with his views, you can’t deny the important role he plays in fostering a fascinating debate about the proper role of judges in our system of democratic governance.
Reading Law: The Interpretation of Legal Texts [Amazon (affiliate link)]
America’s Unwritten Constitution: The Precedents and Principles We Live By [Amazon (affiliate link)]
Judge Richard A. Posner Speaks at Columbia Law School [Columbia Law School]
Posner on Amar’s Unwritten Constitution: “Extremely Strange” [Volokh Conspiracy]
How Many Constitutions Can Liberals Have? [The New Republic]
Columbia Federalist Society [Twitter]
The Hilarious Hedgehog: Judge Richard Posner [Underneath Their Robes]
Earlier: Quote of the Day: A Time-Out in Posner v. Scalia?
Quote of the Day: The New Republic Isn’t That Glossy….
The Benchslap Dispatches: Justice Scalia on Judge Posner’s ‘Hatchet Job’
Posner v. Scalia: Bryan Garner Tags In
The Benchslap Dispatches: Posner v. Scalia — Is It Personal?