The Incoherence of Antonin Scalia - By Richard A. Posner (Yes, THAT Judge Posner)

[DonViejo]

NOTE: This is a two year old article, published AUGUST 24, 2012, in the New Republic I found it thanks to a link in this article, excerpted here:

-snip-

Scalia and Posner, both appointed by Ronald Reagan, have been feuding for several years. In 2012, Posner wrote a lengthy piece in The New Republic attacking Scalia's newly published book, arguing that the justice's philosophy of "originalism" was a smokescreen for the goal of achieving conservative ideological outcomes. Scalia accused the judge of lying and the two have been critical of one another ever since.

http://talkingpointsmemo.com/dc/richard-posner-scalia-gay-marriage

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By Richard A. Posner

Reading Law: The Interpretation of Legal Texts
By Antonin Scalia and Bryan A. Garner
(Thomson/West, 567 pp., $49.95)

JUDGES LIKE TO SAY that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. They 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, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”

Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

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.

more
http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism

[Gothmog]

1. Scalia has been showing signs of increasing senility for some time

[Prophet 451]

2. That assumes Scalia has a principle he judges by

He doesn't. Scalia makes his decisions entirely on political grounds and barely bothers to disguise it. When same-sex marriage gets to the SCOTUS, Scalia will disregard his previous opinion entirely and vote against. This is so utterly predictable that I half-expect Scalia to just release a form letter of his future opinions that says "conservatives win all cases".

[hifiguy]

4. This is basically 100% correct.

[cheyanne]

3. Scalia explains why he dislikes democracy in this article.

It's called "God's Justice and Ours" that he wrote in 2002. In it he describes how the moral authority of God gives those in (legitimate) power the right to capital punishment.


http://www.firstthings.com/article/2002/05/gods-justice-and-ours


Here is his reasoning of how democracy has gone wrong.


"These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God”or any higher moral authority”behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge”to vindicate the “public order””be any greater than our own? "

[H2O Man]

5. Exactly.

This quote -- which he has also repeated in public presentations -- is the single most important thing to know to understand both how and why he "rules" in the manner that he does.

[hifiguy]

6. Poor Fat Tony

He really misses Charlemagne and the Holy Roman Empire.

Jefferson or Madison would mince him to pie filling in an honest debate.

[freshwest]

7. Thanks for bringing that info here. I saw Scalia talk to reporters one day.

He feigned a Godfather persona, asking just what did the American people want from the Court?

He said they were being presented with meaning of life questions no one could answer, and we expected them to rule on it but it was beyond their ability to make such weighty decisions.

He ended with a 'You askin' me? I dunno.' display. Definitely not USSC material. It's no wonder Thomas and Scalia have decided to serve the Koch's.

[hifiguy]

10. Scalia is not dumb, though he's only about 1/3 as smart

as he thinks he is. He is, however, a goon in a judicial robe. Thomas is an actual dolt who does what Scalia tells him to do.

[Quantess]

8. Scalia is an ass.

That's putting it nicely.

[hifiguy]

9. Saved the entire article

for reading tonight, as well as Posner's opinion in the marriage cases. I am going to nerd out on them tonight over a whisky.

And those snarky asides in the opinion were a thumb in Scalia's eye by Posner. They have been feuding ever since Posner basically called Scalia a complete fraud in the linked article.

[Octafish]

11. Please report back your thoughts, hifiguy!

Scalia is one of the biggest crooks to ever sit on SCROTUS, a bench alongside the likes of Berger, Rehnquist, Thomas and Roberts, that's saying something.

[hifiguy]

12. Burger wasn't a crook.

He was a pompous prat and a legal lightweight but he wasn't a crook. He did sign off on US v. Nixon, after all. Though I doubt he wrote very much of it even though his name is on it. IIRC the story in "The Brethren" it was largely guided and shaped by the great Bill Brennan and Burger's clerks. It HAD to be a unanimous opinion, and Burger knew it, and Brennan held Burger's feet to the fire to get a tightly written opinion that left the Trickster no wiggle room at all.

Rehnquist was just plain evil. Thomas is an absolute dolt. I doubt he could write a decent 10-page opinion in a simple case without his clerks. He just does what Fat Tony tells him to do.

[ms liberty]

13. k&r for later. n/t