Tuesday, September 18, 2012

The Scalia-Posner Spat Over Statutory Interpretation (9/18/12)

The Scalia-Posner spat is ratcheting up, with Justice Scalia allegedly accusing Judge Posner of the big lie -- Posner's assertion that Scalia used legislative history.  Fanning furor, Justice Scalia says appeals court judge lied (Reuters 9/17/12), here.  I suppose that, in Justice Scalia's different universe, such an accusation is as low as one can go.

At any rate, I previously blogged on Justice Scalia's new book, in collaboration with Bryan Garner, on Statutory Interpretation which is an important part of my Federal Tax Procedure class and book.   Review of Scalia Book on Statutory Interpretation (7/17/12), here.

I have nothing substantive to offer over this spat, but I think it does illustrate that there is something important -- if neither right nor wrong -- about the role of legislative history in statutory interpretation.


This is a good article by a scholar.  Eric Segall, The Scalia-Posner War and Why it Matters, here.  Excerpts:

Over the last couple of weeks, Justice Antonin Scalia and Judge Richard Posner have been engaged in an unusual public feud over the role that legal rules play in judicial decision making. In The New Republic, Judge Posner wrote an exceptionally harsh review of Scalia's new book Reading Law: The Interpretation of Legal Texts, written with Bryan Garner. Scalia's book presents over 50 canons or legal rules that he and Garner suggest can and do help judges decide hard legal issues. In a lengthy response, Posner demonstrates that Scalia's rules cannot decide cases, that the sources and cases the authors cite don't stand for the propositions for which they are asserted, and that, of course, at the end of the day, what decides cases are the judges' personal and political values, preferences, and balancing of the equities of the parties' positions, not pre-existing legal rules. 
* * * * 
Scalia purports to be a "textualist-originalist" and he claims to apply that philosophy to his work on the Court. Constitutional interpretation should be about text and history, not personal values. The problem is that almost no one believes this anymore and Scalia's public defense of the indefensible probably accounts for the tone of Posner's review. 
The sources of constitutional law are vague (due process, liberty, equal protection, etc.,), the history of provisions almost always contested (does the Second Amendment apply to just militias or to people), and the Court is not bound by its own cases and frequently the law of the Constitution changes as the Justices and their politics change. The reason why Justices Scalia and Ginsburg (they are friends) disagree on almost every contested issue of constitutional law is not because one applies better canons of construction than the other or one is a better legal interpreter than the other, but because they embrace different personal values and life experiences. Posner knows this, described how the Justices decide cases in his book How Judges Think, and being an appellate judge himself wants to set the record straight when it comes to the relationship between judicial discretion and the resolution of hard legal issues. Posner knows that Scalia's public misstatements on this issue carry a great cost. 
* * * * 
The battle between Posner and Scalia is about how judges, especially Supreme Court Justices, decide cases, and that issue is crucially important to our constitutional democracy. Because Posner believes judging, especially at the Supreme Court level, is about values and discretion, he urges the Court to defer to the elected branches absent a clear conflict between a law and constitutional text. Scalia does not apply such deference, though he often claims he does. In a few months, the Court will likely decide whether the University of Texas may use racial preferences to redress generations of discrimination, and whether Congress may continue to insure that states with a history of voter suppression don't make it harder for minorities to vote. The relevant text and history of these two disputes will be contested and Posner would likely defer to politically accountable officials on both questions. Scalia will almost certainly vote to strike down these efforts to confront our racist past and then claim that neutral canons of constitutional interpretation require him to do so. On this battleground, whether judges decide by rules or by discretion, the history of the Supreme Court demonstrates clearly that Posner is carrying a nuclear weapon and Scalia a bow and arrow.

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