Monday, September 03, 2012

Posner Versus Scalia: Posner Wins the War But Loses One Battle

By Mike Dorf  (updated with an addendum at the end)

For those readers who enjoy watching a good heavyweight fight, I highly recommend Judge Dick Posner's review of Justice Scalia's book with Bryan Garner.  The title of the review says (nearly) all: The Incoherence of Antonin Scalia.  But that parenthetical qualifier is important, because in fact Posner does not just say that Scalia and Garner repeatedly contradict themselves--although Posner does say that; Posner also says that they lie.

Well that's not exactly right.  Posner doesn't use the L-word, but he does say that Scalia and Garner repeatedly misrepresent the cases they cite as supposed examples of virtuous textualism.  Most readers of the book, Posner says correctly, will not go look up the cases cited in the footnotes, but he did, and he discovered that the cases simply don't say what Scalia and Garner claim they say.  Posner's point here is not simply that Scalia and Garner are sloppy and/or mendacious.  It matters because Scalia and Garner are making a descriptive claim: that "textual originalism" is, or at least used to be, standard operating procedure for courts.  Posner says that if you look at the cases Scalia and Garner themselves cite--not to mention the mountain of cases they fail to cite--you will find that courts in fact do not typically follow textual originalism, and they never have.

That's a powerful critique, but there's more.  Following in the mainstream academic tradition that by now dates back well over a century, Posner also argues that there's a good reason why judges to not apply textual originalism when interpreting statutes and other legal texts: Hard cases are hard, and thus call for judicial resolution, precisely because they present circumstances that the text does not clearly resolve one way or another.

Still, on one point, I think Posner's critique falls short.  Scalia and Garner say that textualism is inherently neither conservative nor liberal because text can be either conservative or liberal depending on whether the legislature that wrote it was conservative or liberal.  Posner says the conclusion doesn't follow from the premise.  Textualism, Posner says, refuses to apply legislation where the text does not expressly apply.  Thus, "textualism hobbles legislation--and thereby tilts toward 'small government' and away from 'big government,' which in modern America is a conservative preference."

I think Posner is probably wrong about that claim, as can be illustrated by an old example--which he and the book discuss.  The question is whether a law forbidding "vehicles in the park" forbids ambulances.  The issue here is whether a court should find a tacit exception to law phrased in categorical terms.  Other things being equal, the textualist approach will say no, while the purposivist approach will say yes: if the legislature had thought of this example it would not have wanted the prohibition to apply to ambulances.  So in this example, textualism leads to greater regulation (constraining more types of vehicles), while purposivism leads to less regulation.  And that pattern will hold whenever a court must decide whether to find tacit exceptions to a prohibition or regulation.

It might be said in favor of Posner's view that cases of statutory interpretation more frequently involve contests over the scope of the primary regulation than they involve contests over the scope of exceptions to regulation.  But I don't think that is a self-evident fact.  Congress and other legislative bodies frequently write laws that take the form "X is forbidden, subject to the following conditions and exceptions."  Debates over the question of whether some activity is an instance of X will have the characteristic form that Posner describes: Textualism will tend to shrink the scope of X.  But debates over the scope of the conditions and the exceptions will have the form of the conflict over whether there is an exception to the no-vehicles rule for ambulances.  And because the part of the statute that sets forth conditions and exceptions will typically be much longer than the baseline prohibition, there will likely be more litigation about those conditions and exceptions.  Thus, one might well expect textualism to have a pro-regulatory tilt.

Does one see such a bias?  Hardly, but that's undoubtedly because the judges and Justices who subscribe to textualism tend to be ideologically conservative already--and because textualism is no more constraining than other modes of interpretation, it gives conservative jurists ample room for the imposition of their anti-regulatory values, notwithstanding any pro-regulatory tilt that textualism might be thought to have in the context of modern legislation.

That conclusion is hardly a vindication of Scalia's views, however.  The core claim of Scalia and Garner is that textual originalism is determinate in a way that other interpretive methodologies are not.  If that claim were true, one would expect to find that the votes of judges and Justices who describe themselves as textualist do not strongly correlate with their ideological views, while judges and Justices who reject textualism do vote in ideologically predictable ways.  Yet in fact, all judges vote in ideologically predictable ways.  And so on the core issue, Posner wins in a knockout.

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Addendum: As I note in response to a question in the Comments, I haven't read the Scalia & Garner book, although I have read enough of Justice Scalia's other writings to be broadly familiar with his views about textualism.  Accordingly, I should not be read as vouching for Judge Posner's claims Scalia & Garner's case citations.  I'm just reporting his claim.  Note that Ed Whelan argues (here, here and here) that Posner misunderstands how Scalia and Garner are using the cases in question and that therefore Posner's accusations miss the mark.  Because that issue is not my main focus in the post, I'll leave it to readers of the book, the cases and the review to draw their own conclusions.

15 comments:

Greg said...

Prof. Dorf, have you read the Scalia/Garner book, or are you simply responding to Posner's review?

Michael C. Dorf said...

Greg, good question. No, I haven't yet read the book, but I have read enough of Justice Scalia's writings over the years--and heard him discussing the book recently--so that I am confident that most of what Judge Posner attributes to him is accurate. The one exception is the characterization of the cases. I cannot vouch for Posner's claim that Scalia and Garner mischaracterize the cases they cite. My post should be read as simply reporting Posner's contention on that point, rather than adding my weight to it.

BDG said...

I'm not sure I'm convinced by your argument that textualism can be pro-regulatory. It really depends on what we define as regulation, doesn't it? Consider Suzanne Mettler's argument about "The Submerged State." She says (following a long tradition in tax commentary) that exceptions from general rules are themselves a form of government intervention. Tax credits are only the most obvious of a long list of examples. E.g., suppose that there's an exception to the "no vehicles" rule for all-electric cars.

AF said...

Is it really pro-regulation to refuse to create a statutory exception, if the exception is consistent with legislative purpose and common sense? Technically that may broaden the reach of the statute, but it also tends to make the statute less effective and popular.

andy grewal said...
This comment has been removed by the author.
andy grewal said...

I'm not sure that the war has been won.

You point out e.g. that textualism "gives conservative jurists ample room for the imposition of their anti-regulatory values." But all that really proves is that a dishonest judge can act dishonestly, whether he embraces textualism or purposivm. That a particular approach can be misapplied hardly establishes that the method is faulty.

Also, on "ideological predictabilty" -- true, in many or most of the hot button cases, the judges vote in predictable ways. But Scalia applies the textualist philosophy (in statutory interpretation cases) in ways that cannot be viewed as ideologically predictable.

And on Posner's point (as summarized by you) that hard cases are hard "because they present circumstances that the text does not clearly resolve one way or another," -- I'm not sure that that's consistently the case. A lot of times, cases are considered "hard" because the text is quite clear but the interpreter just doesn't like what it says or because he perceives the text to be inconsistent with its "spirit." This difficulty arises from a problem of the purposivism's own making. In fact, there are many, many cases, even at the S Ct level, where the dispute is easily resolved using a textualist philosophy -- textualism CAN be "determinate in a way that other interpretive methodologies are not."

And, I'm not sure why S Ct cases are the relevant universe when determining how to interpret statues. A practicing lawyer would be far more concerned about being able to the trust the clear text of statutes, the overwhelming majority of which will never receive any judicial or administrataive exposition whatsover. Textualism (if widely embraced) would allow him to do so; purposivm always leaves open the possibility that no matter how clear the statute, there's always the chance that the "spirit" of the statute will trump the text. (Admittedly, this ambiguity is great for lawyers, especially for tax lawyers. Not so much for the general public.)

Of course, this is not to say that textualism always leads to easier answers. Sometimes the text is ambigous and the legislative history will be clearly on point. In these circumstances, the textualist will struggle with the ambiguity while the legislative historian will not. But on the whole, I think respecting the text of a statute, rather than its spirit, will lead to more determinate results, even if that's not inevitably the case.

tjchiang said...

I think your last point has to deal with selection effects. Accepting that textualism is not perfectly determinate, it can still be more determinate than other methodologies and yet lead to judges voting their ideologies in virtually every case. All that is required is for all the litigated cases to always fall in the zone of textual indeterminacy. And under the standard models of litigation selection effects, that is exactly the set of cases that one would predict would reach appellate judges. So the fact that appellate judges reach ideological outcomes does not necessarily refute anything except the textualism-is-perfectly-determinate thesis. While I admit that oftentimes the political appeal of textualism is based on a rhetoric of perfect determinacy, I don't think many modern textualists actually make such an ambitious and untenable argument anymore.

Shak Olreal said...

A practicing lawyer would be far more concerned about being able to the trust the clear text of statutes, the overwhelming majority of which will never receive any judicial or administrataive exposition whatsover. Textualism (if widely embraced) would allow him to do so; purposivm always leaves open the possibility that no matter how clear the statute, there's always the chance that the "spirit" of the statute will trumpWindows 7 Pro product Key
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