Scalia and Garner vindicated–Posner not so much

The dispute between Justice Scalia, Professor Garner and Judge Posner about the 2012 Scalia and Garner book Reading Law: The Interpretation of Legal Texts became legendary for nerds like me who have no life. I took a nasty poke at all three of them in my “Top Ten” post on legal writing. (Point 9.)  The spat between these three captivated the blogs and swords were drawn on both sides. That controversy died down until very recently.

In response, Professor Garner did something highly unusual.  He hired someone to objectively review the controversy.  The report is now out.

Runs batted in: Scalia and Garner 8 and Posner 1 (with 3 partials leaning Posner).

The author, a highly regarded appellate lawyer (Steven Hirsch), was paid a token fee of $500. He was given free rein to write whatever he believed. There is no reason to think he was biased. Indeed, he said that “I am actually a great admirer of Posner. He is a national treasure. I believe in his brand of legal realism[,]” though Posner should have been “a little more careful” in his criticisms.

Maybe I am credulous, but this effort by Garner strikes me as particularly praiseworthy. It represents a concrete commitment to introspection, humility and intellectual honesty. Scalia and Posner could use a dose of those values (although I deeply admire each of them).

Anyway, good for Bryan Garner.


6 responses

  1. Shouldn’t it be free “rein” instead of free “reign”? I believe the etymology comes from giving a horse it’s head.

  2. Jim,

    This is why I needed your daughter, one of my great former law clerks, to check my speeling.

    Thanks. Fix in the works. All the best.


  3. I’ve always wondered why those that are high achieving in their fields tend to be cocky or arrogant. This is especially evident in sports where I do think the majority of athletes are really cocky. Makes me wonder if the reason they are that good is because they are cocky and not the other way around. It would make sense, a person with less confidence in his abilities may perform less than 100% when it matters the most. Maybe cockiness is a necessary condition.

  4. This is much ado about nothing. When judges don’t care how a case will come out, they tend to play by the rules … but when they have a dog in the hunt, they NEVER fail to pet it.

    The most obvious cases in point are election and social hot-button cases, where you can predict the outcome of the case with a disturbing degree of confidence if you know which Party elevated the judges to the bench. E.g., Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220 (Fla. 2000); Gore v. Harris, 772 So.2d 1243 (Fla. 2000); Bush v. Gore, 531 U.S. 98 (2000) (you know); New Jersey Democratic Party, Inc. v. Samson, No. A-24 September Term 2002 (N.J. 2002) (allowing Democrats to replace scandal-plagued incumbent Sen. Robert Torricelli on the ballot with then former-Sen. Frank Lautenberg); People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (Democrat-dominated court striking down Republican legislative redistricting plan, asserting expanded judicial power [FWIW, I filed an amicus in the case]).[1]

    In his acidic and appropriately disrespectful[2] dissent in Bush v. Gore, Justice Stevens observed:

    Although we may never know with complete certainty the identity of winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law

    It is difficult to disagree on these facts with the learned Justice: Only the foolish or spectacularly inattentive can have even a vestigial faith in our black-robed dictators’ ability to color inside the lines. Hitler’s law courts had as much credibility as their modern American counterparts; the only difference is in who the Reichchancellor is.[3]

    It is the one ossified constant in the human condition: power minus accountability invariably equals tyranny. Hitler sent Jews to their death because he could. Jews herded Palestinians into Bantustans, because they could. And what were once judges have become tyrannical dictators, because they can be.

    But law is not just process; it is the fountain from which human dignity springs. It WAS the role of the courts to guard that spring, “in interpreting the Constitution, to protect the people who went unprotected by every other organ of government—to safeguard the interests of people who had no other champion.” Elena Kagan, For Justice Marshall, 71 Tex. L. Rev. 1125, 1129 (1993). While the Koch brothers can buy governors and apparently, even Supreme Court Justices, the Roberts Court regards hoi polloi as der Jüden, unworthy of Their Lordships’ attention. “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens,” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), but the current regime creates them.

    In short, Scalia is dead right … and Posner is dead right. Problem is, just as Judge Kopf cannot admit publicly that it is wrong for a judge to sit in judgment of his own cause, Posner can’t admit that there are separate rules of decision for the two classes of case (where the judge does and doesn’t care about the outcome). The McQueary Rule: “It just isn’t done.” Candor comes hard to the government, and even harder to our judocrats.


    [1] There appears to be one exception to the rule: those appointed by Bush #41. They tend to be wild cards (e.g., Justice Souter), and more faithful to the rule of law than their colleagues.

    [2] Most dissents employ the phrase, “I respectfully dissent.” When a judge wants to tell you just how pissed off s/he is, s/he writes, “I dissent.”

    [3] When Hitler consigned a man to Auschwitz, he didn’t have to give a reason; the Führerprinzip of the Third Reich was that “the Führer’s word is above all writtenlaw.” Reasons are reserved for important people, and Muselmanner like myself—non-persons—are not important. We are but mere abstractions.

  5. I think Posner “went overboard” because he had to. For him to admit what he would have to in order to maintain his accurate theory of American judging is to (appropriately) cast aspersions on the entire American judiciary.

    While Posner, Kozinski, and the late Richard Arnold were undeniably brilliant, Scalia is more of a bully than a towering intellect, given more weight than he deserves on account of his high office. Our selection system rewards mavens of mediocrity; we will never see another Brandeis or Marshall.

  6. “we will never see another Brandeis or Marshall”

    Hold your horses there. I’m still young but I can humbly say that I am the second coming of Marshall…and Brandeis…combined.

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