September 19, 2012
The Chicago Tribune
Scalia wages war of words with federal appeals judge in Chicago
By: Annie Sweeney
They are considered two of the foremost legal thinkers in the country. They've both worked at a university devoted to rigorous discourse and have taken strong, if contrasting, theoretical positions on the law.
So it wasn't a complete surprise to some Tuesday that Richard Posner, a longtime federal appeals court judge in Chicago, and U.S. Supreme Court Justice Antonin Scalia find themselves in the middle of an intense, public debate, a day after Scalia publicly accused Posner of lying in a book review.
"I don't believe the way to regard this is a fight," said Northwestern University law professor John McGinnis. "The way to regard this is as a struggle between these very strong proponents of two theories."
McGinnis, who teaches constitutional law, called both men legal "titans" who, unlike many other judges, have developed comprehensive theories of jurisprudence and are dedicated to writing about it just as university scholars are.
"They are both academics," he said. "They both have comprehensive theories that are incompatible that are struggling for supremacy."
Posner, experts said, is often described as espousing a pragmatic theory grounded in economics. His opinions discuss the business or financial implications of the case or explain how his decision makes sense in the marketplace.
Scalia's approach to the law is described as "textual originalism," which holds that judges should adhere strictly to the text of laws and give them the meaning understood by the people who adopted them. Laws do not change in meaning over time, adherents contend.
But they share one trait, Chicago appellate attorney Michael Rathsack said in an email: "They both are very certain they are correct."
Scalia's book on textual originalism, "Reading Law: The Interpretation of Legal Texts," co-written with Bryan A. Garner, touched off the legal tit for tat.
In the review of the book in The New Republic, Posner accused Scalia of deviating from his own strict, text-based approach to interpreting law when he struck down a District of Columbia handgun ban in 2008 by considering the legislative history behind the law.
Scalia, speaking Monday night to Reuters about the book, lobbed a sharp retort.
"To say that I used legislative history is simply, to put it bluntly, a lie," Scalia said in an interview with Reuters Editor-in-Chief Stephen Adler.
The book is published by West, a unit of Thomson Reuters.
Posner declined to comment through a spokesman at the University of Chicago Law School, where he serves on the faculty, as Scalia did from 1977 to 1982. Garner, when reached Tuesday, repeated the concerns over Posner's review — but also struck a conciliatory note.
"The allegations Judge Posner made in his review about our use of cases are matters of fact, not of opinion," he said. "And as matters of fact, it is very easy for people to ascertain the truth. … I have long considered Judge Posner a friend. And I can only hope that he feels the same way."
Joel Bertocchi, a Chicago appellate attorney who has argued before Posner and Scalia, said he doesn't recall such sharp, public debate between jurists. But he said it was likely born out of the fact that judges more often write "off the bench" today.
"In the past, judges spoke only through opinions," he said. "These are both prolific writers off the bench. In the old days, judges wrote their memoirs. It's probably inevitable that two gentlemen of such strong opinions would end up butting heads."
It's perhaps inevitable, yet regrettable, to at least one veteran jurist, who also serves on the 7th Circuit with Posner and knows both men.
"I hate to see good friends get into a fight," Judge William Bauer said Tuesday.