Friday, June 15, 2012

Bryan Garner and Justice Scalia are getting the band back together

Continuing their interesting collaboration, legal writing guru Bryan Garner and United States Supreme Court justice Antonin Scalia have a new book coming out. It is entitled, "Reading Law: The Interpretation of Legal Texts," and it appears to be addressed to judicial readers. Their previous collaboration, "Making Your Case," was aimed at litigators.

Tony Mauro of the National Law Journal has the scoop, including this tidbit:
Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. "That is a false charge," Garner said Thursday, adding that Scalia is probably "the most consistent and principled" justice in terms of following the text wherever it leads him. 
In the preface, Scalia and Garner address that point. "If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it." Describing himself as a "confessed law-and-order social conservative," Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but "finds nothing in the text of the Constitution that mandates these policies."


  1. I guess we have to take his word for it Justice Scalia is being true to his principles rather than his preferences. We have no way of knowing. While I recall a New Yorker article where Justice Scalia mentioned that his wife was unhappy with the flag burning decision, I do not recall him saying that he was unhappy with his ruling. To take another example, how would we know that his preference was for a narrow interpretation of the confrontation clause and he ruled against the preference? Even if that were true, would it not be more accurate to say that his preference for textualism (or orignialism) is stronger than his personal preference on a case?

    Mr. Garner's defense of Justice Scalia has an obvious bias problem. But I recognize that does not mean that Mr. Garner is wrong. Although one wonders what he did to determine that Justice Scalia is more principled to statutory text than the other justices. Perhaps what he means is that he agrees with Justice Scalia's textual interpretations more than the textual interpretations of others.

    It has been said before, and might be worth repeating, that "originalism" (which I believe is another word for textualism but perhaps I am wrong about that) was created by Justice Hugo Black, a liberal. From this one can say that the theory itself does not have a political bias. How do we account for differing results of the theory when used by liberal and conservative judges? To use the most obvious example, Justice Scalia's jurisprudence on civil rights cases is much different thant Justice Black's. Is that because one is less principled than the other?

  2. "How do we account for differing results of the theory [of originalism / textualism] when used by liberal and conservative judges?"

    Well, people disagree about things, right? Including the meaning of words. Originalism / textualism is only an interpretative method--not an answer key. "Living constitutionalists" disagree about things, too, but that doesn't mean that their interpretative theory is necessarily illegitimate.

    And now I quote myself:

    'Scalia does not generally "exclaim" that originalism makes deciding cases "easy." In fact, he's said the opposite: "It's not always easy to figure out what the provision meant when it was adopted . . . I do not say [originalism] is perfect. I just say it's better than anything else." What Scalia does argue—and what is almost irrefutably true—is that the concept of originalism is "easy" to understand. At least you know what an originalist is trying to do. Thus, for example, if you think that Scalia hands down a decision that doesn't comport with the original meaning, you can criticize him on those terms. (For an example, see Justice Stevens's dissent in D.C. v. Heller.) Scalia's criticism of Breyer's interpretative method ("active liberty") is that it is so complicated on a conceptual level that one can hardly criticize (or defend, really) a decision that's been decided according to it. In other words, how can you criticize Justice Breyer on his own terms? ("Hey, Breyer, the liberty in that decision isn't active enough! It needs more yeast!")'

  3. I have not read Justice Breyer's book so I can't really comment on whether one can criticize the application of "active liberty." I certainly agree that it easy to defend/criticize an opinion that is based on originialism. This, of course, is not the same thing as saying it is the best way to decide cases.

    I still think that Garner's statements about the most principled justice are somewhat ridiculous. As I mentioned above, assuming that Justice Scalia is somehow voting against his instinct on cases he is really picking which of two preferences he values more. I like the Nestle's Crunch Bar. I really like Reese's Peanut Butter Cups. When I eat a Reese's Peanut Butter Cup I don't say that I am eating against my preference for Crunch bars. Justice Scalia is simply going with his stronger preference for textualism when he applies textualism in a case where he might, in the abstract, prefer a different result. When he doesn't want to use originalism., he doesn't use it. The Supreme Court (including Justice Scalia) has much a different view of what the First Amendment protects and what the Eighth Amendment prohibits than the framers did.

  4. I think there is a profound difference between a preference for a result and "preference" of interpretative methods. Because the latter can lead you to results that you don't like; the former, by definition, cannot.

    This is not at all like choosing a crunch bar or a peanut butter cup. It is more like choosing whether to eat a peanut butter cup or to stick to your diet. Sure, sometimes you give into temptation and eat the candy—but that doesn't mean your diet would be unhealthy if you stuck to it.

    Maybe you're right that Scalia is sometimes unprincipled and abandons his avowed methods when it suits him. But, like I said, at least you can criticize him objectively for that.

    Regarding, Garner's comment ... I mean, that's just like his opinion, man. Anyhow, someone has to be the most principled justice. And there only are only nine justices. I don't think Scalia is a ridiculous choice, because he is arguably the most likely justice to rule against his stated political preferences in hard cases, particularly in criminal law and criminal procedure cases.

  5. I agree that if we are going to rank them then someone has to be the most princpled-to-the-text justice. I also agree, and didn't mean to suggest otherwise, that Justice Scalia is not a ridulous choice. That said, I find the category ridiculous. I also find the exercise of picking a most princpled-to-the-text justice ridiculous. Does he rank all 9? Who came in second? More importnatly, who is the least principled-to-the-text justice? For that matter, who is deciding what the text means so that we can determine who is the most princpled about following it? After all it is a rare-to-non-existent casewhere a judge or justice competely ignores the text just rules the way they want.

    I am also unconvinced that being a "law and order conservative" is somehow inimical to finding things like broad right of confrontation under the confrontation clause. The confrontation clase is a law, after all.

    In any event, it will be interesting to read the book. I am sure it will come in handy when we are on the bench.

  6. "I am also unconvinced that being a "law and order conservative" is somehow inimical to finding things like broad right of confrontation under the confrontation clause. The confrontation clase is a law, after all."

    I am convinced. The confrontation clause makes it harder to convict criminals for their crimes and thus makes it harder to impose the "order" that law and order conservatives favor. Same thing with the Fourth Amendment cases where Scalia has broadly interpreted the prohibition against unreasonable searches. It would be easier to impose order if there were no constitutional prohibitions on police searches and seizures.

  7. Watched Justice Scalia verbally pounded in his interview on C-Span's Q&A with Brian Lamb a few weeks ago. Seems that Mr. Lamb used a burn-all-bridges--strafe-the-firefighters approach in his assertive questioning of the Supreme Court Justice (not just about his latest book effort with Bryan Garner but about some of his controversial past decisions: Bush v. Gore 2000; Citizens United 2010). Mr. Justice Scalia didn't hold up well under the withering queries and appeared visibly rattled. Perhaps he can attend one of Mr. Garners legal seminars--not.


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