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.


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.