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Posner and Scalia



John Holbo has a modest proposal:

But that still gives the Reps a 1/3 chance of shooting the moon: controlling Congress, the White House and the Supreme Court. So ‘Republicans screwed the pooch’ and ‘Dems staring down barrel of defeat and devastation’ are both true, and should be held true together. Which is why the President should do what he can to confirm anyone – even a moderate conservative – to the Scalia seat in the next year, as insurance against dire, downside risk. In this thread someone suggested Obama should nominate Richard Posner and I realized, to my own mild surprise, that I would be quite happy with that result, all things weighed and balanced and considered. I’ll take a Posner in the hand over the threat of another Scalia on the bench. I’m a moderate squish.

The reason is basically this: there isn’t anything I think we might get otherwise, which a Reaganite like Posner would squash. But I do think there are ultra-right radical results we might get, which a Reaganite like Posner would squash. The Supreme Court isn’t going to be a site of left-wing judicial activism, but it might be a site of right-wing judicial activism. So shutting down the latter, at the cost of foreclosing the former, is optimal. Erecting a Reaganite firewall against Ted Cruz is a sound Dem strategy.

On the one hand, this is too pessimistic about what Posner would do on the bench. Between his shift to the left on economics and his recent opinions, mu guess is that his vote record wouldn’t look very different from that of, say, John Paul Stevens. He never had the strong Republican identity or self-definition as a conservative that kept O’Connor largely in the fold even as the party rapidly scurried to the right. On the other hand, between these opinions and his candor about Supreme Court justice being an inherently political job, a Republican Senate would no more confirm him than it would confirm Pam Karlan, even at age 77. There’s no political bank-shot available Obama can use to get someone at all acceptable confirmed.

It did occur to me recently, though, that Posner is the judge that Scalia was alleged to be. A genuinely high-powered intellect who is capable of writing quotable prose and has little tolerance for nonsense, but who maintains a high level of rigor even in opinions he expects to be read by a broader audience. Compare, say, his opinion striking down arbitrary abortion restrictions to the random insults in a BLISTERING Scalia dissent.

To come full circle, then, you really should read Posner on Scalia’s textualism if you haven’t. His arguments about why the approach obviously fails in constitutional interpretation are familiar but entirely accurate:

SCALIA AND GARNER contend that textual originalism was the dominant American method of judicial interpretation until the middle of the twentieth century. The only evidence they provide, however, consists of quotations from judges and jurists, such as William Blackstone, John Marshall, and Oliver Wendell Holmes, who wrote before 1950. Yet none of those illuminati, while respectful of statutory and constitutional text, as any responsible lawyer would be, was a textual originalist. All were, famously, “loose constructionists.”


It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified. Yet Scalia and Garner claim that “recent research persuasively establishes that [the ruling in Brown that separate but equal is not equal] was the original understanding of the post-Civil War Amendments,” citing for this proposition a single law review article published seventeen years ago. They do not mention the powerful criticism of that article by Michael Klarman, a leading legal historian—which the author of the article they cite, Michael McConnell, is not, although he is a distinguished constitutional law professor and a former federal judge. And, ironically, McConnell based his analysis on the legislative history of the Fourteenth Amendment, which should be anathema to Scalia.

That Klarman paper is great, BTW. Posner also explains why Scalia’s “textualism” doesn’t work as a method of statutory interpretation either:

THERE IS A COMMON THREAD to the cases that Scalia and Garner discuss. Judges discuss the meanings of words and sometimes look for those meanings in dictionaries. But judges who consult dictionaries also consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive puzzle. How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?


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.


The remarkable elasticity of Scalia and Garner’s methodology is further illustrated by their discussion of a case in which the Supreme Court held, over a dissent by Scalia, that a federal statute providing that no state could require a statement relating to smoking and health to be placed on a cigarette package, other than the statement required by the statute, did not preempt state tort suits charging cigarette advertisers with misrepresentation concerning the health hazards of smoking. The ruling was consistent with the canon approved by Scalia that I mentioned earlier—that a federal statute is presumed to supplement rather than displace state law. The majority held that suits based on the state’s view of the health hazards of smoking were preempted (and this part of the decision Scalia concurred in), just not suits based on the duty to avoid misrepresentation. Scalia and Garner ignore the distinction, saying instead that “when Congress has explicitly set forth its desire, there is no justification for not taking Congress at its word.” But the statute was not explicit about overriding all state tort suits that might relate to cigarette advertising—it did not mention such suits; and so the approved canon should have carried the day for Scalia.

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.

Scalia’s “textualism” might have had a superficial influence on other judges, in that they’re more likely to claim to have reached a given result by looking solely at statutory text rather than explicitly discussing the other factors appellate judges do (and should) consider to make sense of ambiguous statutory text. But whether this changes a meaningful number of case outcomes is a different story. As both Scalia’s opinions and his abstract defenses of “textualism” make clear, it’s no more determinate than any other grand theory, and if it clearly produces an inconvenient result you can just not apply it in a given case anyway.

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