My blogging has been slow lately, but I’d be remiss not to point readers to Judge Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book, Reading Law: The Interpretation of Legal Texts. It is a terrific piece of writing and it is an utter evisceration of the book. In the review, Posner does three things well. He shows the inconsistencies and, possibly, even intellectual dishonesty of the book. He convincingly attacks textualism, perhaps the dominant interpretive mode of conservative legal thought. And he shows the ways in which Justice Scalia’s jurisprudence demonstrates the same flaws as his book.
A few weeks ago, there was a minor kerfuffle when Posner criticized Scalia’s opinion in Arizona v. U.S. in Slate. Scalia responded by pulling rank: I’m a Supreme Court justice and you’re an appellate judge, so don’t tug on Superman’s cape. That works in law – the Court gets the final word. But in academe, the playing field is more level. And in this case, Scalia brought a knife to a gunfight. This should become required reading in statutory interpretation classes.