Scalia smackdown

Wow.  Judge Richard Posner delivers a complete intellectual smackdown of Scalia in TNR.  I was going to link this as part of an omnibus post, but after reading it, realized it deserves a post of it’s own.  Anyway,  I’ve never quite understood the cult of Scalia’s intellect.  Everybody is always saying how smart he is, even when they disagree with him.  I’ve never come to that conclusion based upon his writings.  It almost seems like something you are supposed to say, than being based on any actual objective intellectual foundation.   Here’s Posner’s excellent critique of Scalia’s “non-ideological” originalism:

He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.

There’s plenty more great analysis from Posner.  If you have any interest in the Supreme Court and/or the Constitution, this is a definite must-read.


About Steve Greene
Professor of Political Science at NC State

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