September 24, 2012
He Said, He Said and Then Another He Said: Posner v. Scalia's Mediated Point-Counterpoint in Good Old Saturday Night Live News(maker?) Fashion
Adding to Mark's More on Justice Scalia post which followed up my Is Originalism Hitting Its Sell-By Date? post, here's the latest "all the news that's fit to print" as created by the Reuters news branch of the publisher of Reading Law: The Interpretation of Legal Texts.
On September 17 Reuters Editor-in-Chief Stephen J. Adler "interviewed" Justice Scalia (and Bryan Garner) on their book, Reading Law: The Interpretation of Legal Texts (2012). [Video below; transcript here]. During the interview, Scalia accused Posner of lying in Posner's eviscerating review of the book in The New Republic, The Incoherence of Antonin Scalia. At issue is whether Scalia deviated from his textual originalism to strike down the District of Columbia handgun ban by doing "legislative history" as Adler characterized Posner's remarks about Heller.
"To say that I used legislative history is simply, to put it bluntly, a lie." -- Antonin Scalia
Quoting the post-interview follow-up article by Thomson Reuters' Terry Baynes in Fanning furor, Justice Scalia says appeals court judge lied (Thomson Reuters News & Insights, Sept. 17, 2012).
Lied, really? At worse it would be a matter of misinterpretation. It this case, however, it is a matter of Adler misrepresenting what Posner said. I'm not saying Reuters' Editor-in-Chief lied about what Posner said in The Incoherence of Antonin Scalia. I prefer to think he simply does not know how to apply "textual originalism" to Posner's text.
Alternatively, Adler could have been slow pitching a lead-in for Scalia to hit one out of the ball park. My hunch is that he at least knew that Scalia (and Garner's) Reading Law is a a repudiation of using "legislative history" in judicial decision-making. Did Reuters' Editor-in-Chief read all 600-plus pages of text before the interview? Don't know but he wouldn't have had to pay for a copy out of his own pocket because it was published by Thomson Reuters.
In response to the headline grabbing pump-it-up to infinity and beyond Reuters mudslinging:
"There is no question that Scalia in Heller was looking for the original meaning of the Second Amendment-that is his method of constitutional and statutory interpretation, the method defended in Reading the Law." -- Richard Posner
Quoting from Text of Judge Posner's respose to Justice Scalia (Thomson Reuters News & Insights, Sept. 20, 2012).
And then one publication day later came Scalia's response to Posner's response in what Thomson Reuters News & Insights' Terry Bayner charactized as "fir[ing] another salvo in his unusual public feud with Judge Richard Posner over the meaning of 'legislative history.'" (Emphasis in the orginial but "added" because Bayner's entire introduction to Scalia's statement is published in italics which to be fair appears to be the house style for lead-ins to published statements but one can you smell the excitement in Reuters' newsroom for creating the news instead of just reporting it.)
"I stand by my statement." -- Antonin Scalia
Quoting from Scalia v. Posner: Round 4 (Thomson Reuters News & Insights, Sept. 21, 2012).
Keep the buzz alive? Perhaps these two brainiacs eventually will move on to a related judicial decision-making topic. Scalia could go on the offensive by addressing the doctrine of stare decisis as "applied" (read sometimes if not oftentimes ignored) by Posner. Perhaps some grunt at Thomson Reuters News & Insights -- "featuring content from Westlaw" -- can compile the history and treatment of Posner's Seventh Circuit opinions by Scalia for a News & Insights feature to keep the buzz alive. If so, the first thing I would do is slap the scraped text into Lexis for Microsoft Office to fact-check the KeyCites by way of Shepard's.
The below video interview of Scalia (and Garner) by Adler is not characterized as a interview. Adler's role is identified as serving as a moderator. Just Thomson Reuters BS. However, a moderating referee would be required if the feuding principals (sorry Garner) were interviewed together. Since LexisNexis hasn't gotten into the legal news broadcasting business yet, IMHO the only neutral forum is Bloomberg Law. It could be as interesting and entertaining as this still timely classic 1978 SNL Point-Counterpoint skit on the topic of abortion.
For what most likely will be the last traditional legal treatise published by Thomson Reuters, buzz just can't get any better than this. Perhaps TR can talk Justice Thomas into writing a legal treatise on silence. Garner is probably available to "co-author" it. [JH]