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How Nuanced is Justice Scalia’s Judicial Philosophy? An Exchange

Hardly was I surprised that Judge Richard A. Posner did not warmly embrace Reading Law, the book on textualism I coauthored with Justice Antonin Scalia. But I was unduly sanguine in thinking that my friendship with Judge Posner (such as it is—we’ve shared several meals since the 1990s and have always had convivial conversations) would ensure at least a fair reading of our book on “fair reading.”

The tendentious hostility of Posner’s review in The New Republic, containing allegations of pervasive misrepresentations in the new Scalia‑Garner book, did come as a surprise—a most disappointing one. A response is in order.

Judge Posner is cited six times in the main text of Reading Law—three of those being negative but restrained. (Three times we cite his work positively.) Despite the telling points made against his earlier positions—such as the idea that canons of construction are disingenuous “fig leaves” used to justify uncandid decisions actually made on other grounds—Posner, in his 5,000-word book review, nowhere acknowledges these criticisms, much less tries to answer them. He instead smears the book with accusations of sloppy research and poor case explanations.

In a series of blog posts for National Review Online, Edward Whelan has done a masterly job of demonstrating why the six examples that Judge Posner assails—examples of Scalia’s and my research and case explanations—are entirely correct.

My coauthor and I knew that a book on textualism would be inimical—if not seriously threatening—to those who promote nontextual means of deciding cases in which a governing legal text is at issue. It would inevitably be attacked.

We therefore took precautions. Please bear with me as I say a word about them. Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book. Meanwhile, both Justice Scalia and I reread many cases where either of us doubted what had been said about them.

Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism—through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision.

Reading Law is a normative, prescriptive book, as we’re at some pains to emphasize on page 9: “Our approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language.” So in citing examples, we were much more interested in the textual problems posed than in the solutions that courts provided. Instead, we explained our solutions, often noting points of agreement and disagreement with the courts that actually decided the cases.

What I’ve said so far is enough to explain why Judge Posner went seriously off the rails in his review. But it’s worth setting straight some of his particular misstatements.

Perhaps the biggest is this non sequitur: “Heller [the gun‑control case] is the best‑known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism.”

What? I spent three‑and‑a‑half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand‑plus articles to write a full‑length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self‑evidently farcical statement. Why write such a tome if its “real” purpose covers less than three pages? (There are two citations to Heller in the introduction and two pages totaling two paragraphs of discussion about Heller in the context of examining legal history.) No, that wasn’t the book’s purpose.

What motivated Justice Scalia and me to write this ambitious book was our desire to bring clarity to what has become the most muddled aspect of judicial decision‑making: interpretation. It had nothing to do with justifying Heller or any other particular case. But Judge Posner’s criticism of that decision is worth looking at.

Judge Posner points to a supposed contradiction: that the book condemns the use of legislative history, yet “Scalia is doing legislative history when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller.” Judge Posner knows very well that “legislative history” does not embrace what the Heller opinion used—the history of the times when the legislation (or constitutional provision) was adopted, including the understandings reflected in contemporaneous legislation and scholarly commentary. “Legislative history” means the floor debates, committee hearings, and committee reports of the legislature or convention that adopted or proposed the text in question. It was not the Court’s opinion in Heller but Justice Stevens’s dissent that used (and, we think, misread) the Second Amendment’s drafting history. Lawyers know the distinction, but Posner’s depiction of a contradiction where there is none, in a magazine directed to non-lawyers, preys on the unknowledgeable.

Judge Posner’s critiques repeatedly miss the mark. Take, for example, his opening criticism, which deals with the book’s treatment of a sign that reads “no person may bring a vehicle into the park.” The book considers whether that prohibition would apply to, among other things, an ambulance. Judge Posner would have the reader believe that “[f]or Scalia and Garner, the answer is yes,” simply because “[a]fter all, an ambulance is a vehicle—any dictionary will tell you that.” That is a gross distortion of our analysis, which explicitly rejects an uncritical acceptance of definitions from just “any dictionary.” Our analysis declines to apply the available dictionary definitions of “vehicle”— “means of conveyance with wheels,” “receptacle in which something is placed in order to be moved,” and “self-propelled conveyance that runs on tires”—because these would literally cover “remote-controlled model cars, baby carriages, tricycles, or perhaps even bicycles.” The book rejects that meaning since, as we explain, it is common usage that we are looking for, and not all colloquial meanings are to be found in dictionaries.

Adding insult to distortion, Judge Posner claims that we “later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout the book.” To the contrary, we do not retreat. And nuance is not equivocation. The assertion that we “retreat” is consistent with a pattern of distortion exhibited throughout his review.

My coauthor and I consistently maintain that ambulances are covered by the prohibition but also explain that “[s]ome of the imperfections [in a statute] can be cured or mitigated by doctrines and devices other than the mauling of text . . . . For example, it may well be that the undeniable exclusion of ambulances by the text of the ordinance is countermanded by an ordinance or court‑made rule exempting emergency vehicles from traffic rules.” Posner ignores that and pounces on a statement made 273 pages later as a retreat: “The driver who violates a criminal law against high‑speed driving while taking a seriously injured person to the emergency room could be excused by the common‑law defense of necessity.” This is not a retreat: it’s an illustration of a mitigating doctrine. Posner himself distorts his claim by first referring to the ambulance in the third paragraph of his review, unsupported by evidence, then presents his off‑point “evidence”  only four paragraphs from the end of the essay—thirty paragraphs later.

Consider another of Posner’s supposed gotchas (all of which suggest an overhasty and determinedly unsympathetic reading). Here’s what Posner says:

Yet in further obeisance to the dictionary Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.

But here are the facts. The opinion did not call the entire expression “from any location into any occupied structure” ambiguous. The court said: “[O]ur examination of the plain meaning of the two phrases [from any location andinto] reveals a latent ambiguity in the statute; one phrase must be interpreted as modifying or limiting the other, and thus principles of construction are implicated.” Commonwealth v. McCoy, 962 A.2d 1160, 1167 (Penn. 2009). In determining the meaning of the phrases, the court said: “To the ordinary, intelligent citizen looking to the conduct proscribed by [the statute], the plain meaning of the word ‘into’ suggests that the shooter must be located outside the structure; otherwise, he cannot discharge his weapon into an occupied structure” and “reading the statute so that ‘into’ qualifies the term ‘from any location’ yields logical results that do not require adding additional terms to the statute. Under this construction, to be deemed criminal, the statute requires that the defendant discharge the firearm from any location outside the structure, and that the projectile move into the structure. Thus, ‘into’ modifies the meaning of ‘from any location’ to include only any location from which the shooter can physically shoot ‘into’ the occupied structure, including other structures, moving vehicles and any other location outside of the occupied structure.” Id. at 1168 (emphasis added). So Posner’s statement that the shooter “could be anywhere, and therefore inside” is patently incorrect.

The court did not, as Judge Posner asserts, decide the case on other grounds. Perhaps he was mistakenly looking at the dissenting opinion. A little fact‑checking would have prevented this and other blunders in Judge Posner’s review.

Most of the reviewers thus far—the book was released only 10 weeks ago—have acknowledged the service we’ve provided in illustrating the 57 valid canons of construction. In the New York Times (7-16-2012), Stanley Fish—whose work we cite negatively four times, by the way—praised Reading Law “for making complicated and sometimes arcane points of doctrine seem accessible and even plain.” That was indeed our goal.

Edward Whelan has demanded that Judge Posner run a prominent retraction and apology. That would be gratifying, since reputations can be marred by such a high‑profile literary rampage. But I’m not holding my breath.

Bryan Garner’s letter repeats criticisms by the National Review blogger Ed Whelan, a former Scalia law clerk who is the head of the Ethics and Public Policy Center, an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.

I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. The book is riddled with inaccuracies, illustrating the adage that too many cooks spoil the broth. The Acknowledgments thank nine “Garner Law Scholars” at a Texas law school who “briefed dozens of cases for our [the authors’] consideration.” I am guessing the Garner Law Scholars were the source of many of the mistakes.

Garner says that what I think are mistakes in the book’s description of cases are merely the result of the authors’ decision to “exclude other factors besides the canon” (statutory principle) that each case illustrates “because the examples are there merely to show how each particular canon works” and so the fact “that a given court considered other factors besides the canon is quite irrelevant to our purposes.” That is untrue. When they say that a court “perversely held that roosters are not ‘animals’” they are saying that a court erred by failing to follow a dictionary definition; in fact the court said that roosters are animals, but then gave reasons why this was not dispositive, reasons Scalia and Garner ignore. Garner now says “it would be very hard to find examples in which a single canon was the sole basis for the decision.” Precisely! The authors aren’t going to pin themselves down to a canon that might generate a result they don’t like. They want to play with 57 canons, many of them as I pointed out not textual. 

Their approach is typified by the example Garner gives in his letter of a sign that reads “no person may bring a vehicle into the park.” Early in the book the authors say that an ordinance that excludes ambulances from the prohibition “is not the ordinance that the city council adopted,” for an ambulance is a vehicle. Hundreds of pages later they retract that conclusion, citing the common law defense of necessity. Garner in his letter calls this retraction an example of “nuance,” an appeal to a “mitigating doctrine.” I call it having a pocketful of nontextual interpretive principles to draw on whenever textual originalism produces dumb results, such as barring ambulances on rescue missions from parks because the dictionary says an ambulance is a vehicle.

Garner says that “in citing examples, we were much more interested in the textual problems posed than in the solutions that courts provided.” But invariably they declare strong agreement or strong disagreement with the decision, and defend their opinion with a cropped version of the court’s reasoning. In the case of a person charged with shooting “into an occupied structure,” the book says “the question was whether, in ordinary English, into denotes the movement from outside to inside” (emphasis added). The answer is yes, and for Scalia and Garner this is another triumph for textualism—“McCoy was properly held not to have fired his gun ‘into’ the restaurant (since he was already inside), so his conviction was overturned.” My review points out that the court had found the entire statutory prohibition in which the “into” phrase was embedded—“discharges a firearm from any location into any occupied structure”—to be ambiguous, and so the “question” was not only what “into” meant but also whether “any location” could include a location within the occupied structure itself. Garner says the court didn’t call the entire expression ambiguous—but then he quotes the court as saying that the entire expression contained a “latent ambiguity.” In other words, the entire expression was ambiguous. Garner says that I said “the shooter ‘could be anywhere, and therefore inside.’” I didn’t say that. I said that this was the implication of the phrase “from any location,” which put it into conflict with the “into” phrase and thus made the statute ambiguous.

He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails’”—held not to apply to an airplane.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore. 

Speaking of legislative history, Garner says that I “prey on the unknowledgeable” when I say that Justice Scalia was doing “legislative history” in his opinion that holds that the Second Amendment creates a right to own guns for personal self-defense (District of Columbia v. Heller). Garner defines legislative history more narrowly than I would, to mean only “drafting history”—but Scalia did discuss the amendment’s drafting history in his opinion and claimed that it supported his interpretation of the amendment.

Garner quotes the literary critic Stanley Fish as praising his book. Fish did praise it—in a review in which he also said that the book’s “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences” is wrong.