January 2014 Bar Bulletin
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January 2014 Bar Bulletin

Posner on the Cons of Modern Constitutional Construction

By Robert W. Zierman

 

Richard A. Posner, United States Court of Appeals judge for the Seventh Circuit, last year wrote his 40th book - Reflections on Judging. While this is not his best work, Posner provides some background about himself; his critique of what he perceives to be the judicial branch's increasing failure to effectively cope with modernity by creating purportedly simplifying means by which to judge; and some thoughts about how judges ought to be "Takin' Care of Business."

To do so, Posner first sets up his bona fides with a chapter titled "The Road to 219 South Dearborn Street." Notably, this is not his only professional location in Chicago. Beyond being an appellate judge, Posner is also a senior lecturer at the University of Chicago School of Law.1

Posner next takes the reader through a painstaking historical build-up of the federal judiciary in the second chapter. Save for a welcome rant about the disutility of the Bluebook, Posner again underwhelms with a chapter about "The Challenge of Complexity," which makes for an unfortunate intended preface for the analysis in chapters four through seven, which are devoted predominantly to methods of judicial construction.

Now, Posner is a fairly conservative judicial voice. But, he is a conservative who reasons. Overall, it would have been better for this book to display those reasoning skills rather than to devote so much attention to criticizing Justice Antonin Scalia and Bryan A. Garner's 2012 treatise Reading Law: The Interpretation of Legal Texts.

While I have not explored that treatise, Posner does not otherwise profess to have a fair sense of the inner workings of Justice Scalia's mind, which makes this section very heavy sledding. Of course, it would be unwise to think an intellectual of Posner's aptitude would consider dumbing-down his arguments. Yet, the result is a book that not only painstakingly, but also painfully, refutes many of the canons of construction put forth by Justice Scalia and Garner.

Instead, Posner should have quickly asserted and, then with only modest "evidence," moved on from the statement:

Scalia and Garner say that "the canons influence not just how courts approach texts but also the techniques that legal drafters follow in preparing those texts," but they provide no evidence; and in fact it appears that judges are appallingly ignorant of how statutes are actually drafted.2

But this simply is not Posner's approach to his craft. So, for those who do enjoy seeing Posner rather effortlessly dismantle the myth of the formalist approach and lay bare the fact that it is only a methodology that is honored or discarded at will by the justices in order to achieve political ends, one should first review Justice Scalia's majority opinion in District of Columbia v. Heller,3 and then follow Posner's Reflections in the bulk of Chapter 7: "Coping Strategies for Appellate Judges II: Interpretation."4


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