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       Supreme Court Justice Scalia is so inappropriately biased he should be considered incompetent.

    Justice Richard Posner has issued a scathing review of Supreme Court Justice Antonin Scalia’s and Bryan A. Garner’s recent book Reading Law: The Interpretation of Legal Texts.   Justice Posner entitles his review The Incoherence of Antoni Scalia. http://www.tnr.com/...

Posner’s review provides provides clear and convincing evidence Scalia is an intellectual fraud, someone who cloaks his own strongly biases behind attacks on everyone else.  Posner makes a strong case Scalia’s  views are actually  inappropriate partisan bias cloaked by incoherent logic.
   Here is an example of Posner destroying Scalia and Garner’s work:

     “Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Millerv. Claiborne) that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.

         “In fact, the court said that “biologically speaking a fowl is an animal,” but that it was not in the class of animals protected by the statute. The court gave a number of reasons for this conclusion—all ignored by Scalia and Garner. One, which was in fact textual originalist, was that “persons of common intelligence” conceived of chickens as birds in contradistinction to animals.

          “But the most cogent reason for the court’s result was that the legislature had passed a statute forbidding cockfighting on Sundays, which implied that it was permissible the rest of the week, and had later repealed the statute, implying that cockfighting was again permissible on any day of the week—and in fact cockfighting was an open and notorious sport in Kansas (to the surprise and disgust of the judges).”

    Justice Richard Posner has issued a scathing review of Supreme Court Justice Antonin Scalia’s and Bryan A. Garner’s recent book Reading Law: The Interpretation of Legal Texts.   Justice Posner entitles his review The Incoherence of Antoni Scalia. http://www.tnr.com/...

    For the non-lawyers, Supreme Court Justice Scalia is a man with tremendous energy and pattern recognition skills.  He is infamous for using polemics in not only his speeches but also in his opinions.  Scalia’s use of polemics is rather controversial.  As Oliver Wendell Holmes, Jr. put it when asked by a young man, “The secret to my success is that I learned early on that I was not God.”  Scalia never understood that.

    Justice Posner is a Reagan appointee, famous in academic circles for his economic analysis.   Originally, back in the 1980’s, Posner was a champion of de-regulation.  Recently, in the past ten years or so, Posner has become increasingly critical of many of the so-called “real” Republicans.

       Now, reading and understanding a legal opinion requires a lot of expertise and work:  because life is so complicated, the law abounds in nuances and nomenclature shorthand.  One area of dispute is how to interpret the Constitution.  We can hear someone like Sara Palin telling a crowd she supports “Constitution loving conservatives” but interpreting the Constitution is not so easy.  In truth, so-called liberals love the Constitution just as much as any so-called conservative. Putting aside an unwinnable debate about who loves the Constitution or the country more, Scalia’s opinions are used by people like Palin to justify their own prejudices, biases, dishonesty, and outright incompetence.

       As one argument used by Scalia to attack various laws and rulings he disagrees with, Scalia claims to have a better means of analyzing the law.  He claims that he is merely interpreting the Constitution according to its original intent.

     In Reading, Scalia attempts to justify his supposed “Originalism” interpretations of the Constitution and Statutes.  Posner provides clear and convincing evidence Scalia is an intellectual fraud, someone who cloaks his own strongly biases behind attacks on everyone else.  Posner gives several examples which make it very clear Scalia uses incoherent “logic.”

   Here is an example of Posner destroying Scalia and Garner’s work:

   

“Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne) that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.

          “In fact, the court said that “biologically speaking a fowl is an animal,” but that it was not in the class of animals protected by the statute. The court gave a number of reasons for this conclusion—all ignored by Scalia and Garner. One, which was in fact textual originalist, was that “persons of common intelligence” conceived of chickens as birds in contradistinction to animals.

          “But the most cogent reason for the court’s result was that the legislature had passed a statute forbidding cockfighting on Sundays, which implied that it was permissible the rest of the week, and had later repealed the statute, implying that cockfighting was again permissible on any day of the week—and in fact cockfighting was an open and notorious sport in Kansas (to the surprise and disgust of the judges).”

        Justice Posner’s article provides a good example of the large difference between the honest conservatives—men like Goldwater, John Ashcroft, and Justice Posner himself—and men like Nino Scalia.   It’s a perfect example of Scalia “logic” that he’d ridicule the Kansas Supreme Court based on a false factual assertion which that court never made.   As Justice Posner points out, few will have the time or resources to check Mr. Scalia’s footnotes or his other factual assertions.  And Scalia himself brags about his embrace of superstitious bias.  I'd add that Scalia, for all his bloviating,  has offered nothing new to the methods by which judges interpret statutes--indeed, Scalia's out of control ego and inappropriate biases have done great damage to our judicial institutions.  

           For starters, Scalia should retract his book and issue an apology to the judges who authored em> Miller v Claiborne.  Like Posner, if they read Scalia's book, they'll consider Scalia a complete idiot.

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Comment Preferences

  •  Thanks for the diary. (3+ / 0-)

    I think it's interesting that Posner doesn't care for Scalia's jurisprudence.

    I hope you don't mind that I tweaked your tags slightly; I added "Supreme Court".

    "It's not enough to be right. You still have to use your nice voice." -said by my then six-year-old daughter; "Love binds us all."-willb48

    by be the change you seek on Thu Aug 30, 2012 at 07:44:56 AM PDT

    •  what is more interesting is the recent (4+ / 0-)

      move to the left by Posner.

      His statements about the inequities, especially in employment law are a complete turn around.
      For a decade, the 7th Circuit has been in the forefront of anti-labor rulings, pretty much ruling in favor of industry whenever and where ever possible.

      He admitted that it has gone too far, and the worker is entitled to far more protections.

      He just ruled in one age discrim case, finding completely in favor of the terminated employee (from Lisa Madigan's Atty General office). A unanimous decision that was also spread around the entire 7th Circuit, precluding any future appeal seeking a rehearing en banc.

      What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

      by agnostic on Thu Aug 30, 2012 at 08:04:52 AM PDT

      [ Parent ]

  •  Posner is even considered to be a conservative (2+ / 0-)
    Recommended by:
    Cartoon Peril, Lujane

    judge, according to a lawyer friend of mine.

    •  he was EXTREMELY conservative, (5+ / 0-)

      but fair minded.

      Now, he deliberately is moving to the left because of the Krazies driving the Klown Kar.

      What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

      by agnostic on Thu Aug 30, 2012 at 08:05:46 AM PDT

      [ Parent ]

      •  What is a conservative? (2+ / 0-)
        Recommended by:
        Lujane, wilderness voice

        Posner IMO wld be considered a "conservative" judge.  Of course, his general conclusions will shift over time as he learns new things and gains more experience.  But on the whole I'd say if you asked Posner he'd think his philosophical outlook has not changed so much over the years.

        If Bush had been looking out for our country, IMO he'd have appointed Posner (or maybe my pick Alex Kozinski) to the Supreme Court rather than Alito.   Toobin's book on the Supreme Court talks about the current politics.  Basically, the RW's main test is how a prospect will vote on abortion; Bush's main priority was to pick justices who would back up his administration on anything they did.

        •  honestly, I cannot answer that. (4+ / 0-)
          Recommended by:
          Mokurai, sfbob, wilderness voice, BachFan

          not anymore.

          In today's party,
          Richard Nixon would be called a communist.
          Ronald Reagan would be a treasonous, tax increasing, socialist.
          Hell, even Abe Lincoln would be unchristian, simply because the bible approves of slavery.

          What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

          by agnostic on Thu Aug 30, 2012 at 09:06:18 AM PDT

          [ Parent ]

  •  Many of these neo-con "authors" just shuffle (2+ / 0-)
    Recommended by:
    Lujane, wilderness voice

    around some research project put together by a summer intern.

    You can always tell when someone has done this, because there's always an inner layer of shoddy, because the intern or whatever lackey did the actual research, doesn't know the full depth of the subject and just wants to crank something out for the Great Man to add to his "body of work".

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Thu Aug 30, 2012 at 08:10:59 AM PDT

    •  Interns and work (3+ / 0-)

      Not the good ones.  If they have some important cases central to any decision, then the good judges and justices will read those.  

      I can say from personal experience that Justice Kozinski, for example, takes a tremendous amount of time to read everything important, both in the record and in the cases.  

      Posner's point is that Scalia uses the Kansas decision as "proof" of  judicial error.  It wasn't a minor point.  Someone of Scalia's intellectual abilities should never make such a mistake.  Another example of Scalia's worldview biases being so strong that Scalia cannot deal with reality.  

      •  Interns (2+ / 0-)
        Recommended by:
        wilderness voice, Cartoon Peril

        Usually, the research memo from an intern would be accompanied by copies of any important case--or these days, for those with the resources which Scalia and Garner should have, all the law is easily accessible on line.  

        Once you've practiced law for awhile, you develop a sense for when things seem correct.  However, for any case important to what you are doing you've got to take the time to read the case and the cases that case relies on as important.  It's a lot of work.

        •  Scalia almost certainly didn't read the Kansas (0+ / 0-)

          decision.  Surely he must have known that the legislature can do a lot of screwy things with definitions, and, as it turns out, the Kansas court was stuck with figuring out yet another mess the legislature had created.

          This sort of shoddy work is typical of Scalia, who never IMHO was much of a scholar or a thinker.  More of a bully, particularly in court.

          For example, he's supposed to be a "textualist" whatever that is.  But when he's confronted with the fact that the slaveholding Founders of the Republic were perfectly comfortable with public whippings as punishments, he gets squeamish, and retreats to "text and tradition" (again, where does this come from?) so that he can weasel out of the logic of his absurd position that history ended in 1789.

          You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

          by Cartoon Peril on Thu Aug 30, 2012 at 12:44:08 PM PDT

          [ Parent ]

  •  Judge, not Justice, Posner, FTR n/t (1+ / 0-)
    Recommended by:
    Villanova Rhodes

    Hardcore anarcho-capitalist (PC: 9.00, -7.59, PM: 8.65, -9.48), hardcore Democrat (I consider the precedent epithets "Wall Street" and "corporate/ist" as honorific; DLC 'til I die, for realz). Russ Feingold devote(e).

    by Jahiegel on Thu Aug 30, 2012 at 08:15:30 AM PDT

    •  Justice not Judge (2+ / 0-)
      Recommended by:
      Lujane, wilderness voice

      Someone at the appellate court or Supreme Court level is properly referred to as a "Justice."   Trial court level jurists are properly named as "Judges."   Usually, people call them all "Judges" but that is missing an important nuance.  (I did not learn this, or appreciate the difference, until after about five years practicing law)

      •  On what do you base this opinion? (1+ / 0-)
        Recommended by:
        mikidee

        Posner is a circuit judge, not a justice. Title 28 sections 43 and 44 make it quite clear that the judges appointed to the U.S. Courts of Appeals are judges, not justices. References to "circuit justice" are to the member of the Supreme Court assigned by the Chief Justice to the circuit.

        Are you perhaps thinking of state appellate courts who use the term "justice" for their members?

        •  In Minnesota, only the state supreme (1+ / 0-)
          Recommended by:
          Villanova Rhodes

          court has justices - everyone else is a judge, including the folks that sit on the Court of Appeals.

          District Court Judge ----> Court of Appeals Judge ---> Supreme Court Justice.

          Yes - nuances are important. They help establish credibility.

          "Anything with lots of garlic and lots of cheese has to be good!" plf515 "True[r] words were never spoken. :)" kirbybruno

          by mikidee on Thu Aug 30, 2012 at 03:02:01 PM PDT

          [ Parent ]

  •  Who loves the Constitution (2+ / 0-)
    Recommended by:
    Lujane, sfbob
    We can hear someone like Sara Palin telling a crowd she supports “Constitution loving conservatives” but interpreting the Constitution is not so easy.  In truth, so-called liberals love the Constitution just as much as any so-called conservative.
    Conservatives love the constitution when liberals are in power. And Liberals love the constitution when conservatives are in power.
  •  This take down is welcome, but... (1+ / 0-)
    Recommended by:
    mikidee

    Posner should spend some time on his own intellectual dishonesty as well.  I don't know if he drifted since I was in law school, but the Rehnquist court was little more than a rubber stamp for Posner reading laissez faire economics into the Constitution.  

  •  Good job! I like Judge Posner. (1+ / 0-)
    Recommended by:
    Musial

    I am not a lawyer, but I have had a lifelong interest in the written word.

    Scalia is a jerk.

    I have read some of Scalia's book and watched an interview he gave to CSpan. I think a better book, which mildly rebukes Scalia, is Constitutional Interpretation, The Basic Questions, in which authors Sotirios A. Barber and James E. Fleming survey several techniques of constitutional interpretation. Here is a list of the ones they discuss:

    ·    Textualism—plain words of the constitutional document
    ·    Consensualism—current social consensus on what the words mean
    ·    Philosophic Approach—nature of things the words refer to, and/or the understanding of concepts embodied in the words
    ·    Originalism—intentions or original meanings of the framers, ratifiers, or others of the founding generation
    ·    Structuralism—document’s arrangement of offices, powers, and relationships
    ·    Doctrinalism—doctrines of courts and judicial precedents
    ·    Pragmatism—preferences of dominant political forces.

    These authors, to me at least, seem objective.

    Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

    by hestal on Thu Aug 30, 2012 at 09:25:43 AM PDT

    •  Constitutional Interpretation: The Basic Questions (1+ / 0-)
      Recommended by:
      wilderness voice

      Have not read that one but you list the tools jurists usually use to come up with their best conclusions when interpreting statutes.  I'd add to "pragmatism" a category "biasism" where the jurist rules according to his or her individual bias more than according to the other tools.

      Posner touches on this concept in Incoherence with his criticism's of Scalia's logic in his Heller opinion.

      He also discusses how O'Connor had a keen eye for assessing how people would view the SCT decisions, which I guess one would say was a pragmatic view.

      Toobin's book The Nine discusses how Scalia's polemics and bias alienated other jurists on the Court, including Justices Stevens, O'Connor, and probably Souter (who was too circumspect to let on if Scalia did) who one would have expected to be Scalia's allies in many decisions.

      •  Thanks, (0+ / 0-)

        I have Toobin's book, but I haven't gotten to it just yet. Thanks for the information.

        Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

        by hestal on Thu Aug 30, 2012 at 09:43:49 AM PDT

        [ Parent ]

  •  Not really germane to the diary's point, but (2+ / 0-)
    Recommended by:
    wilderness voice, Musial

    Kansas v Claiborne has some interesting facts about the history of cockfighting, including this gem from Abraham Lincoln:

    [W]e read in Lock v. Falkenstine, Okl. Cr., 380 P.2d 278, that it is reported Abraham Lincoln said to a group of citizens, who wished to wipe out gamecock fighting by federal laws: "As long as the Almighty permitted intelligent men, created in His image and likeness, to fight in public and kill each other while the world looks on approvingly, it's not for me to deprive the chickens of the same privilege."

    We must drive the special interests out of politics.… There can be no effective control of corporations while their political activity remains. To put an end to it will neither be a short not an easy task, but it can be done. -- Teddy Roosevelt

    by NoMoJoe on Thu Aug 30, 2012 at 09:31:58 AM PDT

  •  Posner commented on originalism recently (0+ / 0-)

    in a C-SPAN interview that the liberals had fallen into the pitfall of trying to refute Scalia on his own originalist ground. Liberals need to leave originalism alone and evolve the Constitution along with the nation. After 35 years of GOP Court domination, we have drifted from Constitutional governance toward judicial supremacism. But for Roberts' switch in time in the ACA case, we'd be discussing impeachment and the exceptions clause.

    •  I tend to agree with this. (1+ / 0-)
      Recommended by:
      Musial

      And that's why, unlike Armando, I'm not a fan of Balkin's "Living Originalism."

      "Anything with lots of garlic and lots of cheese has to be good!" plf515 "True[r] words were never spoken. :)" kirbybruno

      by mikidee on Thu Aug 30, 2012 at 03:08:09 PM PDT

      [ Parent ]

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