The Court has moved the legislative power beyond the realm of mindful decision-making altogether.
Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book is peculiar. There is no way to see it as other than a hatchet job – an attempt to attack the book, without balance, from every possible direction. As with most hatchet jobs, it reflects as poorly on its author as on its target.
I say this with some regret as I believe that Richard Posner is a genius – a genius in the sense that he is capable of doing what it is hard to imagine a human being doing. His incredible output at a high quality is just amazing. It is not that any bit of it is so dazzling, although it is quite good; it is the incredible quantity of it at that high level. But, of course, that he is a genius does not make him right. Nor, as is most applicable in this case, does it mean that he does not let his passions get the better of him.
I am not sure how much to blog about this. But as I read through the review, so much is wrong that I thought I would just start discussing it. We will see how many posts I can write about it before tiring. For a more systematic criticism of Posner by someone (unlike me) who has read the Scalia and Garner book, see Ed Whelan’s post (link no longer available). I should note that I don’t agree with Scalia about everything and Posner does make some good points. But the weaknesses of his review are pretty glaring.
Let me start with a claim that Posner makes early in the review:
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 are two points worth discussing here. First, Posner claims that textualist judges hobble legislation by insisting that legislatures “think through myriad hypothetical scenarios and provide for all of them explicitly.” But this is not clear. It depends on the desires of the legislature and what would help them. Some legislatures may not trust judges to tamper with their legislation, because they believe that judges either have different values than the legislature or are not competent to determine what the legislature’s desires are and to further them. Various progressive jurists criticized the courts in the early 20th century on the grounds that conservative judges were tampering with and undermining legislation.
Second, Posner claims that refusing to assist the legislature thereby promotes small government. But that ain’t necessarily so. Barry Weingast and Dan Rodriguez ask why regulatory statutes that were passed during the 1960s and early 1970s suddenly stopped being enacted. Their explanation is that a liberal Supreme Court was interpreting these statutes, such as the Civil Rights Act of 1964, in an expansively liberal way that went beyond the desires of the median voter. As a result, more moderate members of Congress were unwilling to enact statutes, even if they were written moderately, because they feared the rewriting that the Supreme Court would do. If Weingast and Rodriguez are correct, in this case assisting the legislature lead to smaller government.
Of course, Posner might respond that the courts were not really assisting the legislature in these cases, they were subverting it. But that’s the thing. It is hard for a judge to know whether or not he is assisting the legislature when he is going beyond its words and when he has strong views about the matter at hand. Presumably, Justice Brennan did not believe that he was undermining the legislature when he wrote United Steelworkers v. Weber.