Part 12 of the series, "The Structure of Lies in Conservative Jurisprudence"
“Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.—Richard Posner
In Part 1, I began the more detailed critique of Scalia's orginalism based on “The Incoherence of Antonin Scalia”, Richard Posner's review of Antonin Scalia's Reading Law: The Interpretation of Legal Texts co-authored with Bryan Garner. Briefly recapping, the five points made in that diary were:
(1) Judges like to portray themselves in a passive, constrained manner, even if they are not so philosophically inclined, for a variety of different reasons.
(2) Scalia's strict textual originalism makes no sense under even modest scrutiny—one source of incoherence—and he actually abandons it, but without fully admitting he's doing so—a second source of incoherence.
(3) Scalia claims that textual orginalism provides the one and only “objective” judicial approach to interpreting the law. But the argument poses its alternative as “non-originalism” which is just a bogeyman, not something that actually exists. What's more, Scalia himself abandons textual originalism by embracing a wide array of other judicial guiding principles.
(4) Scalia's claim that textual originalism is ideologically neutral may sound plausible in the abstract, but neglects how things actually work in practice.
(5) Scalia's own attempt to describe how his theory produces a liberal result, in the case of flag-burning, only yields yet another vein of incoherence, as the example actually contradicts his interpretive theory. The First Amendment was originally about words, not symbolic speech, like flag-burning. As Posner put it, “an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.”
We now continue with the rest of the points gleaned from Posner's critique.
(6) Scalia mistakenly argues that textual originalism was the historically dominant judicial philosophy prior to around 1950, thus revealing an appalling lack of knowledge, and a complete inability to read legal texts. Here's Posner, again:
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.”
Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”
So, textual originalism says the text alone, Blackstone says (1) the text, (2) the context, (3) the subject matter, (4) the effects and consequence, or (5) the spirit and reason of the law. And Scalia quotes this passage to show that Blackstone agrees with him?
Did I mention that Scalia can't read?
What kind of “brilliant” person can't read?
(7) Scalia shows extraordinary selectivity in ignoring whatever he wants to. It's no news that Scalia and other conservative justices have a habit of selectively attending to and ignoring whatever they need to reach a particular decision. Bush v. Gore was a famouos example, in which conservative justices who never make 14th Amendment equal protection arguments suddenly trumpeted the vital importance of doing so—even if “protecting” ballots meant ensuring that they would never be counted. (“Ooops!”) But what Posner points out is that this very same habitual dishonesty plays a crucial role in bolstering Scalia's argument for textual originalism as well:
OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism. Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word “sandwiches” in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.
Posner then goes on to explain that the case involved a company, PR Restaurants, which leased space in a shopping center with a clause forbidding the center to “lease space to another store if more than ten percent of the new store’s sales would be of sandwiches.” But the dictionary definition of sandwich was only part of the court's reasoning, which included the following:
“PR has not proffered any evidence that the parties intended the term ‘sandwiches’ to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of ‘sandwiches’ in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. [PR] was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties’ understanding of the term ‘sandwiches.’”
That would be quite enough to prove Posner's point. But he can't resist going further into the utter foolishness of dictionary-based judicial reasoning:
Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.
Indeed! And if one's whole reputation depends on defending a hopeless judicial philosophy, then of course you will arbitrarily pick and choose everything that goes into your arguments.
(8) Scalia's inability to read others is matched by his inability to understand what he is doing himself. We've seen an example of this already above, in the flag-burning case. But Posner offers us another example as well: Scalia's rejection of using legislative history—which surely consists in part of “the context” and the “spirit and reason of the laws” as well as shedding light on “the subject matter” as well as “the effects and consequence”. It's not that Scalia actually rejects using legislative history: it's that he says that he does so. And because he says that he rejects it, he cannot actually focus on doing it well. Here is Posner wadding into this particular quagmire:
Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.
Judge J. Harvie Wilkinson III has argued that because the historical analysis in Heller is (from the standpoint of advocates of a constitutional right to own handguns for personal self-defense) at best inconclusive, judicial self-restraint dictated that the District of Columbia’s ordinance not be invalidated. His argument derives new support from a surprising source: Judge Easterbrook’s foreword to Scalia and Garner’s book.
Yes, that's right folks, the forward to Scalia's book provides support for attacking Scalia's ruling in Heller! And—as the passage quoted at the beginning of this diary indicates, the main thrust of the book is to justify Scalia's ruling in Heller! Posner continues:
The foreword lauds the book to the skies, but toward the end it strikes the following subversive note: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” The “living political community” in Heller consisted of the elected officials, and the electorate, of the District of Columbia.
Easterbrook goes on: “When the original meaning is lost in the passage of time…the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint, which Scalia and Garner endorse by saying that a statute’s unconstitutionality must be “clearly shown”—which it was not in Heller....
Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.
The ultimate point of all this is that (1) Scalia's textual originalism is revealed as a sham, (2) that his actual approach to jurisprudence is shown to be incoherent, and ultimately lawless, and (3) Scalia is shown to be incapable of understanding what either he or others are up to in very crucial arguments. This last point is particularly damning, since a judge must be capable of understanding arguments presented to them, if they cannot do this, they cannot be a judge—not even a trial court judge. Yet, what Posner has shown is not just that Scalia misunderstands arguments within cases, he misunderstands arguments about the broad sweep of the law—such as his own misundertsanding of Blackstone referred to above.
Finally, as I said before turning to Posner's critique, this is all historically a result of a white supremacist response to Brown. In a part of Posner's critique I didn't quote he says that “It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist.... Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified.”
Historically, this is clearly the case, though Scalia, of course, tries to pretend otherwise. But it goes back to the same sort of contradictions embodied our Constitution which I disucssed above. Do we take the “original intent” to be the ideals expressed? Or to use of the ideals to hide continuing evil? Or something else entirely? And if answering this question is so difficult, if not downright impossible, then how can “original intent” help with constitutional interpretation, rather than just make it more difficult? The answer, quite simply, is that it cannot.