Justice Antonin G. Scalia has thrown sharp barbs at 7th Circuit Judge Richard Posner in their ongoing public spat about the role of history in legal interpretation. But last week he took a softer approach in mocking the now infamous review Judge Posner wrote of Justice Scalia’s latest book.
As you recall, Judge Posner questioned the wisdom of basing legal interpretations on merely text and history in his critical review in The New Republic of the book “Reading Law: The Interpretation of Legal Texts,” which Justice Scalia authored with Bryan Garner. The review has led to some public bickering — via media outlets — between the esteemed jurists. In one interview, Justice Scalia went so far as to say Judge Posner lied in asserting that Justice Scalia relied on legislative history in his opinion in the Second Amendment case DC v. Heller. Judge Posner responded with a two-page letter to Reuters defending his claim.
But at event recently in Washington, hosted by the American Enterprise Institute for Public Policy Research, Justice Scalia took a more gentle approach in keeping the public feud going.
“Someone wrote an article for a glossy magazine,” Justice Scalia said at the AEI event, referring to Judge Posner’s review, “criticizing our use of history in Heller. And [it] called our opinion in Heller ‘law office history.’ Which is a derogatory term which refers to the history that lawyers write in their briefs.”
Using his customary mix of bluntness and humor, Justice Scalia essentially dismissed the criticism.
“The argument goes, ‘You know, Scalia, you’re not a historian! That’s a science onto itself. How can judges or lawyers purport to do history?’” Justice Scalia said. “You have to do some historical inquiry into the meaning of words to be a lawyer. I mean, what does a ‘taint of blood’ mean in the Constitution? What is the right of the writ of habeas corpus? Any lawyer has to look into what those words meant at the time.”
He also generally dismissed the notion that judges are tasked with doing what’s right — as opposed to doing what the law says.
“If you think lawyers are not very good historians, do you think they are better ethicists?” he asked a laughing audience.
When it came to interpreting the words of the Second Amendment in Heller, Justice Scalia said: “Unless you do historical inquiry, you can’t understand what it meant.”
Justice Scalia, who embraces an originalist approach to constitutional interpretation, also took time to rally against the concept of a “Living Constitution.”
“You want the death penalty? No one ever voted to ban it,” Justice Scalia said. “The Eighth Amendment was never thought to proscribe the death penalty. Therefore, it’s up to you. You think it’s a good idea? Persuade your fellow citizens and you got it. You think it’s a bad idea? Persuade your fellow citizens and repeal it. And you can change your mind if you repeal it. If you have a lot more murders, put it in again! That’s flexibility. … But the four justices I sat with who thought that the ‘Living Constitution’ prohibits the death penalty, if they had prevailed that would be the end of democratic debate.”
Asked about his thoughts on the public perception of the Supreme Court, Justice Scalia said the real work of the justices — interpreting complicated laws like ERISA and the Bankruptcy Code — is nothing like people think.
“They think we are spending most of our time up their contemplating our navel,” Justice Scalia said of the public’s perception of the court. “But if they sat in on, you know, a term’s session of our cases, they would know that most of the time we are not deciding whether there ought to be and therefore is a right to abortion, or ought to be a right to homosexual sodomy” Justice Scalia said, waving his hand and taking on a mock aristocratic accent as he drew laughter.