Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book
is peculiar. There is no other way to see it as other than a hatchet
job – an attempt to attack the book, without balance, from every
possible direction. As with most hatchet jobs, it reflects as poorly on
its author as on its target.
I say this with some regret as I
believe that Richard Posner is a genius – a genius in the sense that he
is capable of doing what it is hard to imagine a human being doing. His
incredible output at a high quality is just amazing. It is not that
any bit of it is so dazzling, although it is quite good; it is the
incredible quantity of it at that high level. But, of course, that he
is a genius does not make him right. Nor, as is most applicable in this
case, does it mean that he does not let his passions get the better of
him.
I am not sure how much to blog about this. But as I read
through the review, so much is wrong that I thought I would just start
discussing it. We will see how many posts I can write about it before
tiring. For a more systematic criticism of Posner by someone (unlike
me) who has read the Scalia and Garner book, see Ed Whelan’s post.
I should note that I don’t agree with Scalia about everything and
Posner does make some good points. But the weaknesses of his review are
pretty glaring.
Let me start with a claim that Posner makes early in the review:
He
is one of the most politically conservative Supreme Court justices of
the modern era and the intellectual leader of the conservative justices
on the Supreme Court. Yet the book claims that his judicial votes are
generated by an “objective” interpretive methodology, and that, since it
is objective, ideology plays no role. It is true, as Scalia and Garner
say, that statutory text is not inherently liberal or inherently
conservative; it can be either, depending on who wrote it. Their premise
is correct, but their conclusion does not follow: text as such may be
politically neutral, 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. Ignoring the limitations of foresight, and
also the fact that a statute is a collective product that often leaves
many questions of interpretation to be answered by the courts because
the legislators cannot agree on the answers, the textual originalist
demands that the legislature think through myriad hypothetical scenarios
and provide for all of them explicitly rather than rely on courts to be
sensible. In this way, textualism hobbles legislation—and thereby tilts
toward “small government” and away from “big government,” which in
modern America is a conservative preference.
There are two points
worth discussing here. First, Posner claims that textualist judges
hobble legislation by insisting that legislatures “think through myriad
hypothetical scenarios and provide for all of them explicitly.” But
this is not clear. It depends on the desires of the legislature and
what would help them. Some legislatures may not trust judges to tamper
with their legislation, because they believe that judges either have
different values than the legislature or are not competent to determine
what the legislature’s desires are and to further them. Various
progressive jurists criticized the courts in the early 20th century on the grounds that conservative judges were tampering with and undermining legislation.
Second,
Posner claims that refusing to assist the legislature thereby promotes
small government. But that ain’t necessarily so. Barry Weingast and
Dan Rodriguez ask why regulatory statutes that were passed during the
1960s and early 1970s suddenly stopped being enacted. Their explanation
is that a liberal Supreme Court was interpreting these statutes, such
as the Civil Rights Act of 1964, in an expansively liberal way that went
beyond the desires of the median voter. As a result, more moderate
members of Congress were unwilling to enact statutes, even if they were
written moderately, because they feared the rewriting that the Supreme
Court would do. If Weingast and Rodriguez are correct, in this case
assisting the legislature lead to smaller government.
Of course,
Posner might respond that the courts were not really assisting the
legislature in these cases, they were subverting it. But that’s the
thing. It is hard for a judge to know whether or not he is assisting
the legislature when he is going beyond its words and when he has strong
views about the matter at hand. Presumably, Justice Brennan did not
believe that he was undermining the legislature when he wrote United
Steelworkers v. Weber.
Posted at 7:53 AM