Dictionaries are mazes
August 29, 2012 8:34 PM   Subscribe

The Incoherence of Antonin Scalia, by Richard A. Posner.
posted by Sticherbeast (46 comments total) 33 users marked this as a favorite

 
I thought this was a great piece, which justified its length and reminded me why I think it's important that places like the New Republic continue to do what they do.
posted by escabeche at 8:38 PM on August 29, 2012 [4 favorites]


Once again, the opposition is idiotic and unable to see the truth.
posted by Mojojojo at 8:39 PM on August 29, 2012


(Oh, and I read it earlier today. I read fast but I didn't read that in 4 minutes.)
posted by escabeche at 8:39 PM on August 29, 2012 [7 favorites]


I love Posner. And I love that he leads off by quoting his former law school student, Judge Easterbrook. That said, Posner's own judicial philosophy has some pretty glaring blind spots, as well. But I'd rather read his analysis of just about anything than Scalia's any day of the week.
posted by The World Famous at 8:42 PM on August 29, 2012 [2 favorites]


I read this earlier today, too. Terrific dismantling of Scalia's legal "philosophy." It's both hilarious and maddening how utterly historically uninformed Scalia (and other "textual originalists") are about language and the political debates within which it was mobilized in the C18th. The fact that he's also a flaming hypocrite is really just the icing on the cake.
posted by yoink at 8:55 PM on August 29, 2012 [1 favorite]


Scalia's textualism is in the same vein as Tim LaHaye's Biblical literalism. It means that the text says exactly what his preconceived notions dictate it should say, every time.
posted by gracedissolved at 8:55 PM on August 29, 2012 [29 favorites]


It's both hilarious and maddening how utterly historically uninformed Scalia

It's non-coincidentally handy as a tool of argument; the person who derives most power from the holy text is always the one doing the interpreting.
posted by jaduncan at 8:58 PM on August 29, 2012 [3 favorites]


Once again, the opposition is idiotic and unable to see the truth.

Man, the opposition. I HATE those guys.
posted by jaduncan at 9:00 PM on August 29, 2012 [26 favorites]


Reading Law: The Interpretation of Legal Texts By Antonin Scalia and Bryan A. Garner.

The late David Foster Wallace was a big fan of Bryan A. Garner's A Dictionary of Modern American Usage.
posted by ovvl at 9:07 PM on August 29, 2012 [2 favorites]


And but so?
posted by escabeche at 9:11 PM on August 29, 2012 [1 favorite]


Mojojojo: "Once again, the opposition is idiotic and unable to see the truth."

I'm not sure what you mean by this, but I suggest you google Richard Posner. He's no talking head or ideologue. In fact, he's frequently cited as the most important living legal scholar not on the Supreme Court. He has not shown a political bias in general, and in fact his biggest pleasure seems to be taking provocative stances that challenge the generally held opinions on both ends of the political spectrum.
posted by koeselitz at 9:18 PM on August 29, 2012 [8 favorites]


In fact, it's somewhat shocking that he'd write this, it should be said. But not in the sense that Posner seems to love to do shocking things.
posted by koeselitz at 9:18 PM on August 29, 2012 [1 favorite]


In fact, having spent a year reading Scalia for administrative law, I can sum it up for you with an adaptation of a famous aphorism:

If the constitution can be interpreted to agree with him, he'll pound originalism.
If it can't, but modern decisions can, he'll pound more recent precedents.
If neither agree with him, he pounds policy concerns and (often) some strawmen he just made up.

He's undoubtedly a great writer stylistically, but he tends to use originalism as a handy weapon rather than a true reference point for his own opinion. The opinions can thus seem rather handily one-eyed.
posted by jaduncan at 9:25 PM on August 29, 2012 [14 favorites]


It's both hilarious and maddening how utterly historically uninformed Scalia (and other "textual originalists") are about language and the political debates within which it was mobilized in the C18th.

That's a bit generous, the uninformed part. It looks, at times, that he is simply cherry picking to support legal opinions derived outside of historical or legal studies.
posted by Slackermagee at 9:34 PM on August 29, 2012 [1 favorite]


That's a bit generous, the uninformed part.

Well, I've never been given the impression by anything Scalia has said that he actually has a profound historical grasp of the nuances of C18th political discourse and philosophy and is choosing to ignore it. Textual originalists in general have to stick their heads pretty firmly in the sand when it comes to these issues because as soon as you acknowledge the fact that in order to understand the text you need to understand the context the whole flimsy charade collapses.

Although I take your point that the cherry picking is the real driver here--given that he'll cherry pick among contemporary usages as happily as he cherry picks among older ones.
posted by yoink at 9:50 PM on August 29, 2012 [2 favorites]


There are some great criticisms of Scalia in here, but unfortunately his privileged position as associate justice means he'll never have to face them: he can resort to the usual pabulum about Posner's "unorthodox" views and then go back to his usual cranky fixation with elected officials' attempts to repeal his rulings. Someone should crash his speaking tour and ask him how his idea of textual originalism can be reconciled with the proposition that a sign saying "no animals allowed" does not include humans.
posted by anewnadir at 9:55 PM on August 29, 2012 [5 favorites]


Everything that jaduncan says perfectly describe my perception of Scalia. He'll hop on whatever pony available to be the darling of the most privileged classes in the country. I sincerely hope that Obama is able to replace him in his next term.
posted by Purposeful Grimace at 11:34 PM on August 29, 2012


Scalia could save a lot of time writing his opinions if he just wrote "Splunge!"
posted by Scattercat at 11:52 PM on August 29, 2012 [2 favorites]


I can't wait to see the wit and wisdom of President Romney's nominees.
posted by clarknova at 11:57 PM on August 29, 2012


I sincerely hope that Obama is able to replace him in his next term.

Bwahahaha!
posted by clarknova at 11:59 PM on August 29, 2012 [1 favorite]


You know, when you start pointing things out like sitting back to allow some poor retarded guy to be executed, voting starts seeming terribly petty and meaningless. You get a choice to vote between people who are all supporting the same false pretence that the United States is a functioning constitutional democracy.

You don't get to conveniently ignore the constitution and still get called a "functioning constitutional democracy". Maybe a "Functional constitutional mockery" would be a more appropriate label.
posted by Goofyy at 12:23 AM on August 30, 2012 [1 favorite]


Oh, I goofed. That was supposed to be "DYSfunctional constitutional mockery."
posted by Goofyy at 12:24 AM on August 30, 2012


You know, when you start pointing things out like sitting back to allow some poor retarded guy to be executed, voting starts seeming terribly petty and meaningless. You get a choice to vote between people who are all supporting the same false pretence that the United States is a functioning constitutional democracy.

Engelhardt, Welcome to Post-Legal America

Is the Libyan war legal? Was Bin Laden’s killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those “enhanced interrogation techniques” legal? These are all questions raised in recent weeks. Each seems to call out for debate, for answers. Or does it?

[...]

My answer is this: they are irrelevant. Think of them as twentieth-century questions that don't begin to come to grips with twenty-first century American realities. In fact, think of them, and the very idea of a nation based on the rule of law, as a reflection of nostalgia for, or sentimentality about, a long-lost republic. At least in terms of what used to be called “foreign policy,” and more recently “national security,” the United States is now a post-legal society. (And you could certainly include in this mix the too-big-to-jail financial and corporate elite.)

It’s easy enough to explain what I mean. If, in a country theoretically organized under the rule of law, wrongdoers are never brought to justice and nobody is held accountable for possibly serious crimes, then you don’t have to be a constitutional law professor to know that its citizens actually exist in a post-legal state. If so, “Is it legal?” is the wrong question to be asking, even if we have yet to discover the right one.
posted by jaduncan at 1:40 AM on August 30, 2012 [9 favorites]


It pains me to agree with that. But the US (and the UK, and Russia, and and and) does not have the greatest recent record of bothering to take anyone in a position of power to court at all.

It's perhaps that which makes me wince most at the contrast of executing the severely mentally subnormal.
posted by jaduncan at 1:42 AM on August 30, 2012


And yes, that was vaguely off topic. My apologies.

But, you know, when yet another case is denied due to lack of demonstrated standing or the state secrets doctrine, it's not so off topic in a discussion of the ahistoricity of Scalia's findings when compared to what an actual academic reading of the nominal rights intended to be protected by the constitution should allow.
posted by jaduncan at 1:45 AM on August 30, 2012


Is the Libyan war legal? Was Bin Laden’s killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those “enhanced interrogation techniques” legal? These are all questions raised in recent weeks. Each seems to call out for debate, for answers. Or does it?

It all depends on how you interpret the work "legal". How did the founders use that word? How did they apply it? Ignore that fact that when laws making things illegal were perhaps written many years afterwards, using the word "legal" as it was used at the time, which could have been different from how John Adams once used it, so you can't rely on what the legislature was thinking when they wrote the law, you can only rely on what the founders were thinking and what words they were using 200 years before the law was written.

Or something like that.
posted by three blind mice at 5:12 AM on August 30, 2012 [1 favorite]


I didn't read anything in the Constitution that said a Supreme Court justice had to be coherent or competent. In that sense, he is being a strict constructionalist.
posted by dances_with_sneetches at 6:10 AM on August 30, 2012 [2 favorites]


Once again, the opposition is idiotic and unable to see the truth.

Assuming that this was posted ironically/sarcastically – you do realise that this is sometimes the case, right?
posted by oliverburkeman at 6:36 AM on August 30, 2012


This is a memorable quote from the article (and I'm only on page 2):

"Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it."

You could subsitute just about anything, though, for "judges" and this statement is still correct. I tell my students (of economics) *constantly* a quote from George Box, the statistician. "All models are wrong but some are useful". When you believe that, and understand it, and it gets deep into you bones, you become epistemologically skeptical. You recognize that your brain, for instance, is producing models of the world around you, but your perceptions and reconstruction of that sensory information is always, at its basic definitional level, "wrong". That does not mean that it is to be avoided, though - your brain produces images and explanations that should be treated with care and caution, as it's severely biased in your favor for the purpose of self preservation, but it's also quite important for navigating this life in any productive way that you learn how to use it.

I'm not a legal scholar, but it seems to me that "originalism" can easily become a kind of false thinking in that the user believes that the models used to derive meaning from the texts are in fact the actual objects themselves. It seems like a fundamental hermeneutical error to ever believe that our interpretations of anything, be it a book, a story, a law, or even the actions of another person, can ever be perfectly rendered within our own minds. Much is lost in the translation, and even those things which travel through are only approximately correct. Without a base understanding that "all models wrong but some are useful", it seems like interpretation becomes a means of imposing forcefully one's own biases onto others.

Anyway, it's so amazing to see Posner so productive at his age. He's such an unusually productive person.
posted by scunning at 6:49 AM on August 30, 2012 [6 favorites]


I sincerely hope that Obama is able to replace him in his next term

You realize that what you are hoping for is the man's untimely death, right? I am not a fan of Scalia but that's really not nice.
posted by sparklemotion at 7:02 AM on August 30, 2012


You realize that what you are hoping for is the man's untimely death, right? I am not a fan of Scalia but that's really not nice.

Maybe we can hope that he gets a calling to become a monk and voluntarily resigns?
posted by yoink at 7:21 AM on August 30, 2012 [2 favorites]


He has not shown a political bias in general

My impression was that Posner was pretty much roundly acknowledged to be, in general, conservative.
posted by kenko at 7:31 AM on August 30, 2012 [1 favorite]


Most definitely Posner is conservative. That is one of the things that makes this essay so compelling.
posted by caddis at 7:34 AM on August 30, 2012


Posner is conservative, but that doesn't mean he's shown a bias in his writing. He comes to his conservative opinions through at least a fairly well-reasoned process. As long as he doesn't let his conservative opinion predetermine or push his analysis (of a case, of a book, of an argument..), he is being unbiased.

And yeah, this was a great article. It's interesting / sad that this book, with all of its misleading case analysis, wouldn't get published in a reputable law journal1, but as a book it's out there and spreading bullshit, and the critiques will likely change little in the collective consensus.

1: That is, if it wasn't Scalia writing it for the LJ.
posted by Lemurrhea at 7:49 AM on August 30, 2012 [1 favorite]


He's such an unusually productive person.

A professor of mine, many years ago, when I was a wee undergrad: "The thing about Posner is that he writes an article a week, and when you do that, you don't have time to think about anything."
posted by kenko at 7:50 AM on August 30, 2012 [1 favorite]


I didn't read anything in the Constitution that said a Supreme Court justice had to be coherent or competent. In that sense, he is being a strict constructionalist.

This, to me, is one of the most frustrating things about the Court. It's really not uncommon at all for the argumentation in a decision to be extremely shoddy—like, not even "promising undergraduate" level quality, much less what one would hope for from a body that has the responsibilities the Court has. But … it doesn't matter! No one sits in review of the Court's decisions and says, "your argument does not support your conclusions here, here, and here, in the following ways—until these comments are addressed your decision cannot be accepted". As long as the majority of the justices are willing to sign on to the conclusion, the argument for it can be bad or nonexistent. Doesn't matter.
posted by kenko at 7:55 AM on August 30, 2012


As long as he doesn't let his conservative opinion predetermine or push his analysis (of a case, of a book, of an argument..), he is being unbiased.

Ehh, I'm inclined to think that the whole law+economics framework is conservative in its bones. Or in many of its bones, anyway.
posted by kenko at 7:57 AM on August 30, 2012


Oh, I goofed. ...
posted by Goofyy at 3:24 AM on August 30

Eponysterical!
posted by Gelatin at 8:13 AM on August 30, 2012


My answer is this: they are irrelevant. Think of them as twentieth-century questions that don't begin to come to grips with twenty-first century American realities. In fact, think of them, and the very idea of a nation based on the rule of law, as a reflection of nostalgia for, or sentimentality about, a long-lost republic. At least in terms of what used to be called “foreign policy,” and more recently “national security,” the United States is now a post-legal society. (And you could certainly include in this mix the too-big-to-jail financial and corporate elite.)

Care to say when it was that the US was "based on the rule of law"? Or when it was a "functioning constitutional democracy"?

Abstract standards of perfection are o.k. in their way, I guess. Lord knows that we need people who look at the world and say "dammit, it should be better than this." But there's something terribly destructive, I feel, in this utterly false nostalgia for some mythical golden age when everything was clean and true and noble in America. It seems to be utterly pervasive on both the right (see e.g. the Tea Party) and the left (see almost any Metafilter thread on politics where someone will be throwing up their hands and declaring US democracy dead) these days.

And yet if you even bother to think for half a second about US history, it's absurd--patently absurd. Let's leave aside the obvious lunacy of thinking that a slaveholding society in which no women were allowed to vote or the society of the Jim Crow years was some kind of noble pinnacle of "true democracy." Pick any decade of the C20th and you'll see plenty of appalling failures to hold the powerful to account or to protect the powerless. Look at US unionbusting in the early C20th--none of that seems even imaginable in this day and age. Look at the McCarthy era abuses: was that the age when the US was a true, noble, pure constitutional democracy? Or maybe it was during the Watergate years?

Now, none of this is an argument to say "well, what can you do, we just have to put up with this shit." By all means speak out against corruption and injustice wherever you see it. But this absurd narrative of decline--a narrative which is so patently counterfactual--is actually disempowering. It makes people feel hopeless. It makes people think that the war is lost so there's no point in fighting the battles anymore. When in fact the overall war has been going remarkably well. The US has, in fact, quite steadily become a freer, fairer and juster society by most measures over the course of the last two centuries. For women, for minorities (for blacks in particular), for gays etc. etc. the arc of history has certainly been long and certainly not been uniform, but it has bent toward justice. Yes we live in a world that is far from perfect, and of course we will never live to see one that is perfect: if you're rich you'll always be somewhat insulated from the rigors of the law and if you're poor you'll always be more vulnerable to injustice. But to look at the world and notice some injustice and to just throw your hands in the air and say "oh no, the world is imperfect, we're doomed, we've fallen from a mythical era of perfection that I just invented" is to do nothing but provide comfort to the oppressors and withdraw hope from the afflicted. Don't make the perfect the enemy of the good. Keep moving incrementally forward wherever you see an opportunity to do so. That's the way you keep insensibly moving forward toward a juster society than the one we currently live in.
posted by yoink at 9:05 AM on August 30, 2012 [11 favorites]


Oddly applicable New Yorker cartoon from the current issue
posted by hippybear at 4:04 PM on August 30, 2012 [1 favorite]


You realize that what you are hoping for is the man's untimely death, right? I am not a fan of Scalia but that's really not nice.

But what about hoping for the man's timely death?

As long as the majority of the justices are willing to sign on to the conclusion, the argument for it can be bad or nonexistent. Doesn't matter.

But this is unavoidable. There must be some ultimate arbiter of the law in the system, whose decision can't be appealed. You could (and some have) posit some review system of SCOTUS decisions: maybe something like a 2/3 supermajority of both houses of Congress could overturn a decision. But then what if the reasoning for that act is also bad? The buck's gotta stop somewhere.
posted by Sangermaine at 5:52 AM on August 31, 2012


I am not a fan of Scalia but that's really not nice.

Neither was this.
posted by homunculus at 11:54 AM on August 31, 2012


Richard A. Posner, a widely respected federal judge, called for the elimination of criminal laws against marijuana in a September 6 lecture at Elmhurst College in Illinois.
posted by homunculus at 12:04 AM on September 8, 2012


Does Antonin Scalia Still Matter? The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts one.
posted by homunculus at 12:07 PM on September 13, 2012


Scalia was 'furious' at Roberts vote on healthcare law, says Toobin book
posted by homunculus at 5:38 PM on September 18, 2012


It had the same effect for Justice David Souter.

"He abhorred the views of Roberts and Alito. Souter didn't like what the Republican Party — his party — was doing to the court, or to the country," Toobin writes.

Toobin also recounts O'Connor talking to Souter about her decision to leave the court.

" 'What makes this harder,' O'Connor told Souter, 'is that it's my party that's destroying the country.' "

posted by Golden Eternity at 7:30 PM on September 18, 2012


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