How Two of the Nation's Leading Conservative Jurists Locked Horns Over a Two-Word Phrase

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Scalia at a Reuters interview on September 17. In the interview, the Justice harshly criticized Posner's response to his book. (Reuters)

Two judicial monsters, Justice Antonin Scalia and Judge Richard Posner, are currently locked in mortal combat above the legal skyline. The cause of the smack-down? Scalia's new magnum opus Reading Law: The Interpretation of Legal Texts (written with legal word maven Bryan Garner), which purports to offer a complete and infallible theory of legal interpretation

Posner is not one to keep silent in the face of what he considers inferior work. True, Scalia is a Justice of the Supreme Court, but what of that? Posner has life tenure on the Court of Appeals, and he has long since realized that someone of his rogue cast of mind -- though conservative, he does not toe any ideological line -- will never get a call from the White House. And, of course, in the public-intellectual sweepstakes, Posner sees himself as at least Scalia's equal.

In a review in the New Republic, Posner accuses Scalia and Garner of "a pattern of equivocation" -- in essence, of wanting to eat their cake and have it too. They lay down grand rules of interpretation, he charged, then find small reasons not to actually follow them when they would lead to undesirable results. In particular, Posner charges, their stated disdain for "legislative history" in statutory interpretation is hypocritical: Scalia invokes legislative history in some of his most famous opinions. In District of Columbia v. Heller, for example, Scalia scried the historical and legal record to satisfy himself that the "right to bear arms" includes a personal right to handgun possession for personal self-defense. "When he looks for the original meaning of eighteenth-century constitutional provisions -- as he did in his opinion in District of Columbia v. Heller," Posner writes, "Scalia is doing legislative history."

Garner, who is not weighed down by an Article III commission, delivered himself of a long defense of the book. But Scalia isn't content to allow even an ally the last word. Three days ago, in an interview with Reuters, he lashed out at Posner in harsh terms. "To say that I used legislative history is simply, to put it bluntly, a lie," he said.

Posner fired back on Thursday in another piece for TNR. The disagreement turns out to center on the definition of "legislative history" -- no doubt a topic of great concern to America's working families. By the term "legislative history," Posner says in this piece, Scalia claims to mean only "the history of the enactment of the bill. It's the floor speeches. It's the prior drafts of committees. That's what legislative history is." Posner notes that, when he himself uses the phrase "legislative history," he means that Scalia had used in his opinions "a variety of English and American sources from which he distilled the existence of a common-law right of armed self-defense that he argued had been codified in the Second Amendment." In Heller, Scalia does use legislative history so defined, making his critique of the tactic in Reading the Law inconsistent.

Now, rather than wade into who's right and who's wrong here, I have to inquire: Is there any serious cause to believe that Judge Posner "lied" when he applied a term slightly differently than Scalia would have applied it?

For that matter, why should Scalia be angry at Posner at all? The great George Gissing once wrote< that "to assail an author without increasing the number of his readers is the perfection of journalistic skill." Posner hasn't managed that feat. His response, though unsympathetic, was serious and careful; it impelled me, and I am sure others, to go out and get the book, and to read it.

Reading Law made me sad. It reminds me of the Rev. Edward Casaubon's unfinished Key to All Mythologies in George Eliot's Middlemarch. It seems, in other words, like a late-life project by a thinker who sense that his intellectual legacy may be less widely appreciated than he had hoped; and, like Casaubon's Key, Scalia and Garner's Interpreting gradually passes from grandiose aspiration into incoherent and trivial specificity.

That, however, is just my opinion. When someone -- Justice, duchess, or knave -- publishes a book, he or she has asked readers to offer opinions -- some of which will seem wrong, some of which will seem ungenerous, and some of which will hurt his or her feelings. It comes with the territory.

That being the case, it is embarrassing for Scalia to careen around the country making these intemperate remarks. Any man who has received the honors Scalia has, who has been swathed in respect and protection even when he behaves most childishly, really should be able to bear an occasional bad review.

To borrow a phrase: Justice Scalia, get over it.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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