Judge Richard Posner skewers Justice Antonin Scalia’s so-called originalism

September 19, 2012 | By | 3 Replies More

In his recent detailed article published in The New Republic,The Incoherence of Antonin Scalia,”  Judge Richard Posner has taken United States Supreme Court Justice Antonin Scalia’s theory of textual originalism to task. Yes, this article presents an extended series of technical legal analyses, but it is written in a way that many lay readers can appreciate. It should be read by anyone who wants to understand the repeated protestations by Justice Scalia that when he rules on case, he is doing so by rigorously paying attention to the actual words of enacted laws.  Judge Posner’s critique of Scalia (and co-author Bryan Garner) is unusually sharp, and it has provoked further sparring among the parties.

What is Scalia arguing to be his carefully applied approach to deciding cases?

[Justice Scalia and his co-author] advocate what is best

described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings

Judge Posner argues that Justice Scalia’s theory is quite often a cover for cherry-picking, enabling Justice Scalia to resolve court decisions in the way that he personally prefers.  According to Posner, “originalism” is essentially a reckless embodiment of the confirmation bias. Judge Posner’s critique goes even further, however, accusing Justice Scalia of repeated disingenuous interpretations of the cases cited by Scalia that purportedly support Scalia’s theory. The cure, according to Posner, is to take the time to carefully read the cases cited in Scalia’s footnotes.  Posner’s own readings of the cases cited by Scalia are the foundation for Posner’s brutal critique. The failure of these cases to live up to Scalia’s billing results in the following scolding:

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?


Nietzsche once wrote:

Whoever knows he is deep, strives for clarity; whoever would like to appear deep to the crowd, strives for obscurity. For the crowd considers anything deep if only it cannot see to the bottom: the crowd is so timid and afraid of going into the water.

Nietzsche’s concern readily applies to these modern times, where the powers that be often generate 2,000 page pieces of legislation and complex systems that serve to confuse and obfuscate those with less than boundless motivation to plow all the way through. Thus, needless complexity has become the modern enemy of truth.   It’s not only ordinary folks don’t have the time, ability and energy to penetrate needlessly complex systems. Experts often don’t have the time or resources to chase double-check voluminous evidence that supposedly supports theories, whether these be in the field of law or elsewhere.  For that, it takes an insider to make sense of things, to puncture balloons by asking appropriate (often simple) questions while armed with a thorough analysis of the data.  This can only be done by someone with extraordinary patience and an expert eye.  Often, it takes an insider who is at that stage of his/her career such that the fear of reprisal is minimal.  Further, when the original claim comes from a prominent quick-thinking person who enjoys steam-rolling his opposition, it takes a challenger of some notoriety such that the truth will be taken seriously, much less heard at all.

Contrary to the claims of Justice Scalia, it is not true that the only alternative to his version of originalism is an unprincipled stream of wishy-washy ad hoc rulings. As Posner suggests, Scalia’s pro-gun, pro-corporation and anti-gay approach to the law is permeated with a misunderstanding of how language works–Scalia has embraced the myth of the objectivist versions of truth (and see here).

Judge Richard Posner has that rare combination of traits and experience necessary to hack through the missteps and fallacies promoted by Justice Scalia.  For his thorough work in taking “originalism” to task, I applaud him.


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Category: Court Decisions, hypocrisy, Law

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (3)

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  1. Tim Hogan says:

    I had the pleasure…erp…of oral argument before Judge Posner. The judge asked me for my hat, asked me for my ass and then handed me my ass in my hat.

    But, the Supreme Court ruled my way three years later and the principle author of the opinion in my case described my argument as “novel” in a footnote! Yeah, I’m “novel” as certified by the Seventh Circuit Court of Appeals, yeah (I wonder if that was a compliment Judge Edwards?). Aw well, the Supremes backed me three years later so I guess I was “novel!”

    Judge Posner has a far ranging intellect and is a challenge during argument. The Clerks and Marshals had pity upon me and I went to a great pizza lunch near the federal courthouse after argument.

  2. Erich Vieth says:

    Posner and Scalia continue their argument in public. http://www.huffingtonpost.com/eric-segall/scalia-posner_b_1883750.html

    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.

  3. Erich Vieth says:

    Brian Leiter weighs in:

    This, however, does raise a puzzle about the book, one consistent with Judge Posner’s worries (though one to which there may well be a good answer). If the cases cited as evidence of correct canons of textual interpretation did not, in fact, really rely on that canon of textual interpretation in rendering the decision (as Judge Posner charged, and as Mr. Garner, I take it, concedes), then these cases are no better than made-up examples of the application of canons of textual interpretation. Why cite cases at all? One might have thought the cases were meant to illustrate good textualist practice, but, if I understand them correctly now, both Mr. Garner and Mr. Whalen deny that. The book is, as Mr. Whalen puts it, “unapologetically normative.” That’s, of course, fine and could be quite interesting: but why cite actual cases at all except to criticize them by reference to the applicable normative standard?


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