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Brian Leiter
University of Chicago Law School

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Monday, September 10, 2012

Posner v. Scalia on Textualism, Redux

In our update to the earlier post, we noted that Justice Scalia's co-author, famed legal prose stylist Bryan Garner, had responded to Judge Posner's scathing review.  Part of Mr. Garner's response included linking to a series of posts by a very conservative blogger at the National Review (one with a clear antipathy towards Judge Posner), Ed Whalen (whom we encountered once before on the issue of internet anonymity).   The rhetorical volume of Mr. Whalen's postings is often out of proportion to their analytical and argumentative content, but his September 7 blog item does seem to get to the crux of the dispute.  Mr. Whalen writes (with bits of irrelevant rhetoric removed):

Scalia and Garner don’t hide the ball. In the first paragraph of their preface, they state that they seek to show that the “established methods of judicial interpretation … are widely neglected,” that this neglect has had lots of bad consequences, and that it is “not too late to restore a strong sense of judicial fidelity to texts” (p. xxvii). In their third paragraph, they state that just as meaning generally is determined by convention, so in legal systems “there are linguistic usages and conventions” as well as “jurisprudential conventions” (p. xxvii). To that end, they set forth and explain 57 interpretive principles or canons and they expose thirteen widespread falsities....

Among the strangest of Posner’s sentences is this rhetorical question: “How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?” (Emphasis added.)

...[T]he last clause of Posner’s question indicates that he somehow thinks that Scalia and Garner are trying to describe “how judges actually interpret legal texts.” In fact, their “approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language” (p. 9 (emphasis added). They are reacting against, and trying to remedy, the widespread judicial “neglect” of “established methods of judicial interpretation.”

Mr. Garner writes in a similar vein:

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.

This would explain why both Mr. Whalen and Mr. Garner effectively concede (or so it seems to me) that with respect to several of the cases identified by Judge Posner, the presentation of those cases in the book was, indeed, incomplete in precisely the ways Judge Posner suggested.  The defense to that charge is:  the cases weren't being presented as evidence of textualism correctly practiced, but as illustrating only one canon of interpretation.

This, however, does raise a puzzle about the book, one consistent with Judge Posner's worries (though one to which there may well be a good answer).  If the cases cited as evidence of correct canons of textual interpretation did not, in fact, really rely on that canon of textual interpretation in rendering the decision (as Judge Posner charged, and as Mr. Garner, I take it, concedes), then these cases are no better than made-up examples of the application of canons of textual interpretation.  Why cite cases at all?   One might have thought the cases were meant to illustrate good textualist practice, but, if I understand them correctly now, both Mr. Garner and Mr. Whalen deny that.  The book is, as Mr. Whalen puts it, "unapologetically normative."  That's, of course, fine and could be quite interesting:  but why cite actual cases at all except to criticize them by reference to the applicable normative standard?  So while the reader might be tempted to think that the case examples are there as instances of sound interpretive practice, they are not, since most of the cases at issue were not really decided on textualist grounds, despite the passing invocation of a canon of which Mr. Garner and Justice Scalia approve.

Most readers will recall Karl Llewellyn's 1950 article on the canons of statutory construction.  He identified dozens of canons of statutory construction, many of which were obviously inconsistent with each other.  Yet each canon had been endorsed by a court as a correct canon.  Llewellyn did not show, of course, that there were no principled grounds for discriminating between the appropriateness of particular canons for particular cases and problems.  But the key question for a textualist is, if there are really 57 canons of textual interpretation (that's more than Llewelllyn found!), are there really sufficient meta-principles governing conflict among these canons to make textualism a constraining and reasonably determinate method of legal interpretation?  The fact that the cases cited as illustrating particular canons are decided on non-textualist grounds might make one skeptical that there really are "established methods" of interpretation, as Justice Scalia and Mr. Garner write in the portion of the preface that Mr. Whalen quotes.   If the canons of interpretation constituting sound textualist practice are not really decisive for the courts in rendering their decisions, in what sense are they "established"?  This now seems to be the key question raised by this exchange.

UPDATE:  Mr. Garner's rejoinder and Judge Posner's response to it are now on-line at The New Republic.

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