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Vol. 2, Iss. 20
October 30, 2013

 

 

Justice Scalia Responds
To Judge Posner’s Interview
In Coverage Opinions


The October 16th issue of Coverage Opinions contained an article and interview with Judge Richard Posner of the 7th Circuit Court of Appeals. The article addressed Judge Posner’s view of his decision making process as that of a realist judge and not a formalist judge.

In Judge Posner’s new book, Reflections on Judging, he describes a realist judge as one that “understands the limitations of formalist analysis, does not (a related point) have a ‘judicial philosophy’ that generates outcomes in particular cases, wants judicial decisions to ‘make sense’ in a way that could be explained convincingly to a layperson, and is a ‘loose constructionist,’ which means he believes that interpretation should be guided by a sense of the purpose of the text (contract, statute, regulation, constitutional provision) being interpreted, if the purpose is discernible, rather than by the literal meaning of the text if purpose and literal meaning are at odds with one another. The realist judge has a distaste for legal jargon and wants judicial opinions, as far as possible, to be readable by nonlawyers, wants to get as good a handle as possible on the likely consequences of a decision one way or the other, has an acute sense of the plasticity of American law, is acutely conscious too of the manifold weaknesses of the American judicial system and wants to do what he can to improve it. He does not draw a sharp line between law and policy, between judging and legislating, and between legal reasoning and common sense.”

According to Judge Posner, a formalist judge believes that “all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role.”

Judge Posner is the best known realist judge and Justice Scalia the best known formalist. They see the judicial decision making process as worlds apart and have a Coke and Pepsi relationship. The simplest way to describe this is Posner’s view that Scalia’s decision making process is needlessly complicated by so-called “canons of construction” (57 that he endorses and 13 that he rejects). These, Posner says, provide Scalia with “all the running room needed to generate whatever case outcome conforms to [his] strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights and the death penalty.”

Posner also observes of Scalia that he “makes judging too difficult by telling judges to master and apply a baffling and ultimately fruitless system for avoiding engagement with reality. He is a complexifier, though it is less likely that complexity guides his judicial votes (and those of others of his school of thought) than that it conceals the biases that actually generate those votes.”

I asked Judge Posner about his differences of opinion with Justice Scalia and suggested an idea:

Q: Your disagreements with Justice Scalia on realism versus formalism are widely known. This is addressed in the book. In addition, the debate has played out in the media and on law blogs. Would you consider a live debate, on a stage, with Justice Scalia over your disagreements? While neither would change the other’s mind, it would be very enlightening for the legal field and have the excitement of a Super Bowl atmosphere.

A: I’d be happy to debate Justice Scalia, but he would never agree, because he would regard it as lowering himself (a supreme court justice) to the level of a mere court of appeals judge (me).

I reached out to the Supreme Court for any comment from Justice Scalia to Judge Posner’s statement that he’d be happy to debate Justice Scalia on the judicial decision making process. Justice Scalia, through the Supreme Court’s Public Information Officer, Kathleen L. Arberg, declined to comment to Coverage Opinions

 
 
 
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