Richard Posner and the "Incoherence of Antonin Scalia"

Justice Antonin Scalia Speaks with Staff at the U.S. Mission in Geneva

In the wake of Justice Antonin Scalia's unexpected death, and the celebrations from friend and foe of Scalia's consistency on the bench, it seemed like a good time to revisit Judge Richard Posner's classic takedown of Scalia in The New Republic, in the form of a review of Scalia and Bryan Garner's book, Reading Law: The Interpretation of Legal Texts.  In Posner's words:

One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. 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.

Worth a re-read.