Monday, September 3, 2012
Scalia's Flawed Book on Reading Law
Justice Antonin Scalia spent his summer making the round of network interview programs promoting the new book that he co-authored with legal lexicographer Bryan Garner, Reading Law: The Interpretation of Legal Texts. From CNN to C-SPAN, Fox News to PBS, Scalia preached the wisdom, indeed the necessity, of his philosophy of “textualism” defined as using the text of a statute as “the sole source” of its meaning.   Scalia, trained in Jesuit schools, cast himself in the interviews as a guardian of the true faith besieged in a world of sinners, including “most of academia” and “knee jerk,” results-oriented editorial writers. But by softening his certitude with occasional humor and repeated protestations of judicial modesty, Scalia undoubtedly won over many viewers to his sheep-versus-wolves dichotomy of legal philosophy.   That philosophy is subject to serious critique, but Scalia’s interlocutors faced daunting obstacles in cross-examining the justice. The book is long (414 pages of text) and dense. The interviewers none of them lawyers surely had too little time to read the book in its entirety, much less examine the sources and cases cited. Time did not allow close questioning, even in the long-form interviews on C-SPAN and CNN, and viewers probably would not have sat through it anyway.   Scalia has now had his comeuppance, however, in a scathing review written by no less a figure than Richard Posner, the prominent federal appeals court judge in Chicago who is as well respected as Scalia in conservative quarters. Writing in The New Republic (posted Aug. 24; print issue dated Sept. 13), Posner accuses Scalia and his co-author of “a pattern of equivocation” throughout the book. And he backs up this critique with specific examples of cases in which the book conveys “distorted impressions” or even outright errors.   Posner tangled before with Scalia, most notably after Posner criticized Scalia’s opinion for the court in District of Columbia v. Heller (2008) recognizing an individual right to possess firearms in the home for self-defense. Asked about Posner’s critique, Scalia acidly noted that he, Scalia, sits in judgment of Posner’s opinions, not vice versa.   Under the headline “The Incoherence of Antonin Scalia,” Posner checks on some of Scalia’s citations and finds patent misrepresentations and revealing omissions. He knocks down Scalia’s insistence that a good dictionary or some number of them will generally provide the needed definition to interpret statutory text of unclear meaning.   On that point, Posner quotes from the generally favorable foreword written by Judge Chief Frank Easterbrook, chief judge on the federal appeals court in Chicago and, like Posner and Scalia, an admired judicial conservative. Judges cannot rely simply on textualism, Easterbrook explains, “when the original meaning is lost to the passage of time or when it was never really there but must be invented.”   Posner makes the most devastating point, however, when he refutes Scalia’s insistence on the political neutrality of his textualist approach. Textualism is neither liberal or conservative, Scalia writes and explains, neither “strict” nor the opposite in construction. Not true, Posner says. “Text as such may be politically neutral,” Posner rejoins, “but textualism is conservative.”   “A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text,” Posner explains. “Textualism hobbles legislation,” he continues, “and thereby tilts toward ‘small government’ and away from ‘big government,’ which in modern America is a conservative preference.”   As Posner notes, Scalia and Garner are also “disingenuous” in characterizing other interpretive theories. Textual originalism, they write, is the “only objective standard of interpretation.” They dismiss what they call “nonoriginalism” and other alternative theories that they denominate as “purposivism” and “consequentialism.” But there are no such things. They are merely straw men straw theories? invented by Scalia and Garner.   Despite the inconsistencies and exaggerations, Scalia can justly take credit for a seemingly more rigorous focus on statutory text in Supreme Court decisions in his quarter-century on the court. “Plain text” may now be the most commonly used two-word phrase in U.S. Reports. It is hard to imagine any justice writing, as Thurgood Marshall once did in an opinion mocked by Scalia, that if legislative history is ambiguous, judges “must look primarily to the statutes themselves to find the legislative intent” (Citizens for Overton Park v. Volpe, 1971).   Scalia concedes, however, that even a true textualist cannot interpret statutes without the aid of rules "canons” of interpretation. He and Garner list 57: some of them familiar to law students, others obscure. Posner finds Scalia’s use of them inconsistent. Presumably, law students and professors will find ample material to explore the charge in law review articles over the next few years or longer. Suffice it to note that Scalia himself admits that he may have been inconsistent at times perhaps because of the need to conform with precedent (stare decisis) or perhaps because of his own lapse into error.   Scalia and Garner cast themselves as following in the footsteps of legal giants, beginning with the iconic English jurist Sir William Blackstone. And yet, as Posner notes, Scalia quotes Blackstone only 26 pages later as calling on judges to look to “the spirit and reason” of a law in deciphering ambiguous meanings in text. The contradiction is lost on Scalia, but fortunately he and his flawed book are not the “sole source” of wisdom on the subject.