[September 20, 2012: This post has been updated at the end to include comments on Judge Posner’s review, Brian Garner’s response, and the volleys between Scalia and Posner.]
It sounds like such a good idea: the pre-eminent legal lexicographer of our time and a Supreme Court Justice together writing a large, detailed treatise on, as they say, “what, in our view, courts ought to do with operative language” of regulations, statutes, and court opinions.
The result of this collaboration between Brian Garner and Justice Scalia, Reading Law: The Interpretation of Legal Texts, billed as “systematically explain[ing] all the most important principles of constitutional, statutory, and contractual interpretation” through a “textualist” approach, does not live up to the hype. It makes one big mistake, a problem that should have been obvious of at least December 12, 2000.
Simon Chester at Slaw has the most thoroughly research review of the book with the broadest perspective, even catching some errors. Stanley Fish rightly points out that textualism’s claim to being the only objective, apolitical form of legal interpretation is rubbish. As Scott Greenfield recognizes,
They acknowledge that the canons, even their own beloved textualist rules, can conflict, but resolve the problem with the facile resort to the one which gives the text its fairest meaning. Aha! The dreaded judgment call that gives rise to a judge imposing his values over competing values. The very method they deride unmercifully throughout the introduction. Go figure.
That is, of course, an intrinsic problem with claimed “textualism” — if the text is less than pellucid, you get to go by what you had for breakfast — but Tony Mauro’s report reveals an even deeper problem with the work as a whole:
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.
Right there, in one sentence, Garner dooms his magnum opus to the overflowing dustbin of legal history, a mere reference for useful case law but not a credible source of analysis, a work the importance of which will not outlast Scalia’s tenure, if that long.
No jurist in recent memory has gone to such great lengths to explicitly make political decisions (like that partisan farce of December 2000) while loudly decrying his detractors for the same. David Zlotnick already explained the problem — that Justice Scalia picks and chooses among his conflicting textual tools to reach his preferred conclusion — more than a decade ago in Justice Scalia & His Critics, 48 Emory Law Journal 101 (1999)(PDF here), but it seems the message needs to be repeated now and again. The Justice doth protest too much, and nowhere does it show more than in a book about textualism.
Just consider this canon in the Garner-Scalia book: “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.” As a legal proposition, this canon is indisputable. It is also a canon that Scalia gleefully ignores when it benefits his political preferences, like in one of the most important cases of the past generation, Citizens United. Under the Bipartisan Campaign Reform Act of 2002, Citizens United, the corporation, could have used its money to broadcast its silly movie whenever and wherever it wanted to up to 30 days before the election, after which it could still do that, but not with funds out of its general treasury; it would have had to have set up a Political Action Committee in advance.
It was a trivial burden compared to the tsunami of money that inundates our elections, less like a finger in the dam than like bucket on the Titanic, but Scalia and his brethren willfully ignored the actual law to manufacture a constitutional problem, falsely claiming they were presented with “an outright ban” of political speech, so that they could place in doubt the constitutionality of the entire field of political campaign finance law.
Or consider this canon from the book: “A federal statute is presumed to supplement rather than displace state law.” This would be news to the millions of consumers who saw Scalia repeatedly overrule state Supreme Court’s interpretations of their own laws to create an irrebuttable presumption in favor of arbitration, a presumption so strong that states cannot pass laws limiting arbitration, so strong that, if the parties ever mention arbitration during negotiation — even if they never reach an agreement, even if the whole contract is void or voidable or unconscionable — then the case will be forced into arbitration anyway.
That’s a far cry from the actual text of the Federal Arbitration Act, which says arbitration agreements are treated like any other agreement, not that they are given special treatment over and above every other law: “A written provision in any … contract evidencing a transaction involving commerce to settle by arbitration a controversy … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Yet, the law is now that a whisper of arbitration trumps all state laws, because Scalia thought that’s how things should be.
While we’re on the subject of “a federal statute is presumed to supplement rather than displace state law,” perhaps Garner and Scalia would like to take a moment to explain PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), where Scalia held that Congress had “implied” that consumers injured by dangerous generic drugs should be left with no remedies, even though neither Congress nor the FDA had ever said a single word to that effect. Congress knows how to pre-empt state laws; just read ERISA’s pre-emption clause at 29 U.S.C. § 1144. There’s nothing like that for the Food, Drug and Cosmetics Act, but that didn’t stop him from holding that a non-existent federal statute displaced the laws of all fifty states.
But it’s not just a matter of Scalia occasionally deviating from the textualist dogma to reach a particular result. The whole “textualism” enterprise is a sham: in addition to the disgraceful Bush v. Gore decision (which hinged upon Scalia overruling the Florida Supreme Court’s interpretation of Florida law, violating several canons) two of the most important cases in which Scalia was in the majority — Ashcroft v. Iqbal and Wal-Mart v. Dukes — involved Scalia overruling decades-old interpretations of the Rules of Civil Procedure and replacing them with entirely new “Rules” made out of whole cloth.
Here are the Federal Rules of Civil Procedure. Read Federal Rule of Civil Procedure 8 to yourself (including the form complaints, starting at page 107), and uncover where, exactly, it says, as Iqbal held, that a plaintiff must show “facial plausibility” by pleading “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Read Federal Rule of Civil Procedure 23 to yourself and divine how, as Dukes held, it requires “the plaintiff to demonstrate that the class members have suffered the same injury.”
You will not find that language anywhere, because the Rules were designed in part to prevent judges like Scalia from using their subjective feelings to dismiss cases. (Read Stephen Burbank’s testimony, beginning at page 3.) In the big cases, when it mattered, each time Scalia dropped the textualism and went right for partisanship. No matter how many “canons” you claim to follow, there is no “textual” basis for a result that plainly contradicts the text in question, as the bulk of his major civil justice opinions do.
If a lawyer, layperson, or jurist is looking for “what courts ought to do with operative language,” they could do no worse than to follow Justice Scalia’s example. And Brian Garner, whose reputation is otherwise untarnished, could do no worse than co-author a book with a “crackpot.”
[Update: Astute readers noticed the “crackpot” link was to a Judge Posner interview. A little over a month after my review, Judge Posner published his review, which assails Reading Law as inconsistent on its own terms and as repeatedly misrepresenting the actual analyses of the cases cited. E.g., “Omitting contrary evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism.”]
[Update 2: Garner has posted a response to Judge Posner, arguing that Posner’s dissection of the cases was flawed because “All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose.” I think that’s beside the point, though. As I wrote in the comments (he hasn’t moderated it yet),
What of the criticism, as Judge Posner and others have raised, that Justice Scalia himself often discards textualism to reach preferred results? For example, the doctrine of implied pre-emption is by definition non-textualist, and yet Justice Scalia routinely advocates for its use, like in PLIVA v. Mensing. Wal-Mart v. Dukes and Ashcroft v. Iqbal, too, involve interpretations of the Rules of Civil Procedure that have no textual basis at all — they are new requirements grafted onto an existing Rule. Citizens United jumped far beyond the issue presented by the facts and the statute to reach a constitutional question.
What use is a prescriptive book when even its author discards the prescriptions to reach preferred results? As I read Posner, his larger point is that judges don’t actually decide cases based on textualism alone unless it supports their conclusion, a point that I argued above is best illustrated by Justice Scalia himself.]
[Update 3: Scalia gave a hostile interview to Reuters, in which — prompted by an inartful question by Reuters — he accused Posner of falsely claiming Scalia used “legislative history” to decide Heller. Posner responded, noting that he didn’t actually say Scalia admitted using “legislative history,” but rather said that Scalia’s analysis of constitutional meaning was effectively the same thing. To support that, he quoted the definition of “legislative history” in Black’s Law Dictionary (edited by Garner!), which is “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.”
In response, Scalia asserted that “I always use it to mean what lawyers understand by the term: not (what Judge Posner thinks it means [ed: and what Garner said it means]) ‘the background and events leading to the enactment of a statute,’ but the hearings, debates, and committee reports in the body that adopted the text at issue, pertaining to the meaning of that text.”
Scalia’s argument doesn’t make any sense. In the pages of Heller cited by Posner, Scalia references “ratification debates,” “Antifederalist rhetoric,” Federalist writings, a variety of proposed (and rejected) Constitutional provisions, and a newspaper article from 1789. Scalia’s claim now is that those sources are all acceptable to consider for a “textualist” examination of a Constitutional provision, but Courts shouldn’t peruse the debates of a legislature to figure out the meaning of a statute. That’s illogical and absurd. In Heller, Scalia plainly did the exact sort of analysis he bemoans of others: reading something other than the text to figure out what was meant by it.
The core point remains: Scalia uses textualism when it works for his preferred result, then abandons it when it doesn’t.]