By Terry Baynes
Sept 20 (Reuters) - A prominent appeals court judge fired a new salvo on Thursday in an unusual public spat with a U.S.
Supreme Court justice.
The dispute is between Judge Richard Posner, a prolific
jurist who sits on the 7th U.S. Circuit Court of Appeals in
Chicago, and Justice Antonin Scalia, a leading conservative on
the Supreme Court.
In August, Posner wrote a review of a book co-authored by
Scalia. The review said that Scalia's judicial opinions deviated
from the strict, text-based approach to interpreting law
espoused in his book.
The review pointed to a 2008 decision authored by Scalia in
which the Supreme Court struck down a handgun ban in the
District of Columbia. That decision was based not just on the
text of the law but also on the legislative events leading to
its passage, Posner said in the review.
On Monday, in an interview with Reuters Editor-in-Chief Stephen Adler, Scalia said that was not true. "To say that I use
legislative history is simply, to put it bluntly, a lie," Scalia
Scalia also said Posner had misused the term "legislative
Now Posner has fired back in a two-page response that he
provided to Reuters. "Responding to a Supreme Court Justice who
calls one a liar requires special care in expression," Posner
said in an accompanying email.
In the response, Posner said he was neither lying nor
mistaken in his critique.
"Even if I accepted Scalia's narrow definition of
'legislative history' and applied it to his opinion in Heller, I
would not be telling a 'lie,'" Posner wrote in his response.
District of Columbia v. Heller is the Supreme Court decision
striking down the Washington handgun ban.
In the interview with Reuters on Monday, Scalia said
"legislative history" refers to history of the enactment of a
bill in the legislature and covers floor speeches and prior
committee drafts, not "the history of the times."
Scalia also called legislative history "garbage" and "the
last remaining fiction of the common law," noting that lobbyists
can get such history inserted into the legislative record to
change the meaning of the text that is adopted.
In his response on Thursday, Posner defended his use of the
term, writing that Scalia was using legislative history in the
gun rights case when he turned to 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."
Scalia may define "legislative history" narrowly, Posner
wrote, but his co-author, Bryan Garner, does not. Posner quoted
a definition from Black's Law Dictionary, of which Garner is the
editor, that describes "legislative history" as: "The background
and events leading to the enactment of a statute, including
hearings, committee reports, and floor debates."
"Background and events leading to the enactment" of the
Second Amendment are the focus of Scalia's opinion in the gun
rights case, Posner argued.
He also cited pages from the opinion that discuss the Second
Amendment's drafting history, which he called "legislative
history in its narrowest sense."
Scalia, 76, is the longest-serving justice on the Supreme
Court. Neither he nor his co-author, legal scholar Bryan Garner,
responded to requests for comment on Thursday.
In their book, "Reading Law: The Interpretation of Legal
Texts," Scalia and Garner say judges should rely on the text of
a law as understood by the people who passed it, not its
legislative history, to determine its meaning.
The book is published by West, a unit of Thomson Reuters
, which also owns Reuters.
Posner, 73, was appointed as a federal appeals court judge
by President Ronald Reagan in 1981 and has written dozens of
books, including one about economics and intellectual property
law. He also is a founding author of the Becker-Posner blog on
law and economics.
In June, he tossed out one of the biggest court cases in
Apple Inc's smartphone patent b attle, ruling that the iPhone
maker could not pursue an injunction against Google Inc's
Motorola Mobility unit over smartphone technology.
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